diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -37350,13594 +37350,15700 @@ "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2198/index.do" }, { - "id": "fca-143136-1", + "id": "scc-21317-1", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 1–4", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 1", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", - "current_to": "2016-03-29", + "text": "II. Background [9] A. Facts [9] B. Judicial History [12] (1) Court of Québec (Judge Roy) [12] (2) Quebec Court of Appeal, 2024 QCCA 86 (Schrager, Healy and Bachand JJ.A.) [15] III. Issues [20] IV. Analysis [24] A. Powers of Arrest Provided for in Section 495 Cr. C. [24] B. History of Arrest Without Warrant in Canada [27] (1) Ouimet Report [28] (2) Enactment of the Bail Reform Act [31] C. Jurisprudence on the Interpretation of Section 495(2) and (3) Cr. C. [40] (1) Pre‑Charter Decisions [41] (2) Post‑Charter Decisions [48] D. Principles of Statutory Interpretation [55] E. Interpretation of Section 495(2) Cr. C.: Can Non‑compliance With Section 495(2) Cr. C. Have the Effect of Making an Arrest Without Warrant Unlawful and Thus Arbitrary Within the Meaning of Section 9 of the Charter? [58] (1) Text of Section 495(2) Cr. C. [58] (2) Context [67] (a) Relationship Between Section 495(1) and Section 495(2) Cr. C. [68] (b) Relationship Between Section 495(2) and Section 495(3) Cr. C. [73] (c) Conclusion on the Context of Section 495(2) Cr. C. [74] (3) Purpose of Section 495(2) Cr. C. [75] (4) Constitutionality of the Public Interest Criterion [80] (5) Conclusion on the Interpretation of Section 495(2) Cr. C. [82] F. Interpretation of Section 495(3) Cr. C.: Does Section 495(3) Cr. C. Apply Where a Criminal Proceeding Is Not Against the Peace Officer Who Made the Arrest? [85] (1) The Text of Section 495(3) Cr. C. Supports Two Interpretations [92] (2) Purpose of Section 495(3) Cr. C. [101] (3) Context [117] (a) Pre‑Charter Context Surrounding the Enactment of Section 495(3) Cr. C. [118] (b) The Purpose of Section 495(2) Cr. C. Is Consistent With an Interpretation of Section 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-2", + "id": "scc-21317-2", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 5–6", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 1–3", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", - "current_to": "2016-03-29", + "text": "Limited to the Liability of the Peace Officer and of Any Person Responsible for That Officer [127] (4) Conclusion on the Interpretation of Section 495(3) Cr. C. [136] G. Application to the Facts [140] V. Conclusion [147] I. Overview [1] This appeal concerns the interpretation of s. 495(2) and s. 495(3) of the Criminal Code, R.S.C. 1985, c. C‑46 (“Cr. C.”), which govern the power of peace officers under s. 495(1) Cr. C. to make arrests without warrant. The question is whether, in a criminal proceeding, a judge can grant a motion under s. 9 of the Canadian Charter of Rights and Freedoms alleging the unlawfulness and arbitrariness of an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C.\n\nIt must be acknowledged that s. 495(2) and s. 495(3) Cr. C. are not drafted in the clearest manner. The proof of this is that courts across the country disagree on the interpretation to be given to them. To decide this appeal, I rely on the modern approach to statutory interpretation, which requires that the meaning of these provisions be ascertained in light of their text, their context and their purpose.\n\nFirst, I interpret s. 495(2) Cr. C. to determine whether it imposes binding limitations on the power of a peace officer who arrests a person without warrant, such that an arrest that is not in compliance with this provision becomes unlawful. My analysis leads to the conclusion that this provision is binding and mandatory. In other words, an arrest that is contrary to s. 495(2) Cr. C. is unlawful under the Criminal Code. This provision is not merely a guideline, a practice guide or a suggestion from Parliament. On the contrary, it obliges a peace officer not to arrest a person without warrant when all of the requirements set out in s. 495(2) Cr. C. are met.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-3", + "id": "scc-21317-3", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 7–9", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 4–5", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", - "current_to": "2016-03-29", + "text": "Second, I interpret s. 495(3) Cr. C. to determine whether its effect is to deprive an accused of the opportunity to allege an infringement of s. 9 of the Charter and to obtain a remedy under s. 24 in a criminal proceeding relating to the accused’s own criminal liability. My analysis leads me to conclude that this provision applies in very specific cases, namely where a proceeding specifically concerns the liability of the peace officer who made an arrest contrary to s. 495(2) Cr. C. and of any person responsible for that peace officer. On the one hand, s. 495(3)(a) Cr. C. applies where the proceeding is brought under the Criminal Code or any other Act of Parliament and concerns the criminal liability of the peace officer or of persons responsible for that officer. On the other, s. 495(3)(b) Cr. C. applies where the proceeding is brought under a statute that is not the Criminal Code or another Act of Parliament. This includes a civil proceeding that concerns the civil liability of the peace officer who made the arrest contrary to s. 495(2) Cr. C. or of persons responsible for that officer.\n\nIn sum, the common feature of s. 495(3)(a) and (b) Cr. C. is that the proceeding must necessarily relate to the criminal or civil conduct of a peace officer where there has been a contravention of s. 495(2) Cr. C. This therefore means, for the purposes of this appeal, that s. 495(3) Cr. C. is not applicable, since this appeal concerns a criminal proceeding relating to the criminal liability of the person arrested without warrant. Section 495(3)(a) Cr. C. thus does not nullify from the outset the chances of success of a person arrested without warrant who would like to challenge the lawfulness of his or her arrest through a voir dire based on s. 9 of the Charter.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-4", + "id": "scc-21317-4", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 10–12", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 6–11", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", - "current_to": "2016-03-29", + "text": "Section 495(2) Cr. C. is mandatory in nature and allows an accused to raise, under s. 9 of the Charter in the context of a voir dire, the unlawfulness and arbitrariness of an arrest that does not comply with this provision. Moreover, s. 495(3) Cr. C., properly interpreted, cannot serve in this case to immunize an arrest contrary to s. 495(2) Cr. C., since the proceeding does not relate to the criminal liability of a peace officer or of persons responsible for that officer.\n\nThe trial judge was required in this case to hold a voir dire to determine the lawfulness of the respondent’s arrest without warrant. The respondent’s motion was not manifestly frivolous, contrary to what was decided. The failure to hold a voir dire is a reviewable error of law that warrants a new trial.\n\nI would therefore dismiss the appeal and uphold the order for a new trial made by the Quebec Court of Appeal. II. Background A. Facts\n\nOn or about March 8, 2018, the respondent, David Carignan, allegedly committed acts of a sexual nature that, according to the allegations in the indictment, satisfy the constituent elements of the offence of sexual assault under s. 271(a) Cr. C.\n\nEleven days later, on March 20, 2018, he was arrested without warrant inside his educational institution for the acts alleged against him.\n\nFollowing his arrest, peace officers took the respondent to the police station, where he was subjected to an interrogation that was recorded on video. During that interrogation, the respondent made an incriminating statement. B. Judicial History (1) Court of Québec (Judge Roy)", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-5", + "id": "scc-21317-5", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 13–15", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 12–14", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", - "current_to": "2016-03-29", + "text": "In November 2018, before his trial began, the respondent filed a motion for exclusion of evidence and for a stay of proceedings based on ss. 7, 9 and 24 of the Charter. The respondent asked the court to exclude the incriminating statement recorded on video on the ground that his arrest on March 20, 2018, was unlawful and therefore arbitrary within the meaning of s. 9 of the Charter. According to him, the arrest without warrant was contrary to s. 495(2) Cr. C. because the police did not believe on reasonable grounds that the arrest was necessary to satisfy the public interest and because there was no risk that he would fail to attend court for his appearance.\n\nWhen the trial began, the trial judge dismissed the respondent’s motion for exclusion of evidence, thereby refusing to hold a voir dire to determine the lawfulness of the arrest under s. 495(2) Cr. C. The judge based his reasoning on an interpretation whereby an arrest without warrant that is contrary to s. 495(2) Cr. C. is nonetheless lawful through the application of s. 495(3) Cr. C. as long as the peace officer acts in compliance with s. 495(1)(a) Cr. C. Since the peace officers had believed on reasonable grounds that an indictable offence had been committed within the meaning of s. 495(1)(a) Cr. C., the judge was of the view that the respondent’s motion had no chance of success. The incriminating statement was therefore part of the evidence adduced by the Crown at the trial that followed.\n\nAt the conclusion of the trial, the judge convicted the respondent, relying notably on his incriminating statement. The respondent was sentenced to imprisonment for a term of 15 months, and a 2‑year probation order was also issued against him. (2) Quebec Court of Appeal, 2024 QCCA 86 (Schrager, Healy and Bachand JJ.A.)", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-6", + "id": "scc-21317-6", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 16–18", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 15–18", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", - "current_to": "2016-03-29", + "text": "The respondent appealed his conviction on two grounds. First, he argued that the trial judge had erred in law by refusing to hold a voir dire on the question of the lawfulness of his arrest. Second, he alleged that the trial judge had erred in analyzing the mens rea for the offence of sexual assault.\n\nThe court, per Healy J.A., found that the interpretation of s. 495(2) and (3) Cr. C. adopted by the trial judge was incorrect.\n\nThe court stated that s. 495(2) Cr. C. “excuses an exercise of the power of arrest without warrant that does not comply with the conditions stated in section 495(1)” (para. 17). Section 495(3) Cr. C. “explicitly reserves to a person arrested without warrant the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (para. 18). Refusal to hold a voir dire on this question deprives the person arrested of the benefit of s. 495(3) Cr. C., which “expressly acknowledge[s]” the possibility of holding a voir dire on the lawfulness of an arrest without warrant (para. 19).\n\nIn this case, the court held that there were valid grounds for the respondent’s request for a voir dire, as there was no apparent basis on which to conclude that s. 495(2) Cr. C. justified such an arrest. By refusing to conduct a voir dire, the trial judge had thus deprived the respondent of the opportunity to allege and establish the unlawfulness of his arrest without warrant, an opportunity that he had on a proper interpretation of s. 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-7", + "id": "scc-21317-7", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 19–20", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 19–22", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", - "current_to": "2016-03-29", + "text": "Finding that the appeal should be allowed and a new trial ordered on the basis of the first ground of appeal, the court did not consider the respondent’s second ground of appeal concerning an alleged error as regards the mens rea required for the offence of sexual assault. Since that question is not before our Court, there is no need for us to address it. III. Issues\n\nThis appeal is one involving statutory interpretation. We are not dealing with a constitutional challenge to s. 495 Cr. C., nor do we have to rule on the merits of the motion filed by the respondent. Rather, the Court is called upon to determine whether it was appropriate for the trial judge to summarily deny the respondent’s request that a voir dire be held to decide the lawfulness of his arrest without warrant.\n\nAn interpretive exercise is required with respect to s. 495(2) and (3) Cr. C., because if s. 495(2) Cr. C. were interpreted as having no effect on the lawfulness of an arrest, it would then become unnecessary to consider whether s. 495(3) Cr. C. prevents the unlawfulness of that arrest from being raised in a criminal proceeding. A proper interpretation of these two provisions, starting with s. 495(2) Cr. C., is therefore essential to determine the outcome of the appeal.\n\nTwo questions can helpfully guide the interpretive analysis in this case.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-8", + "id": "scc-21317-8", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 21–22", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 23", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", - "current_to": "2016-03-29", + "text": "First, it must be determined whether s. 495(2) Cr. C., properly interpreted, can have the effect of making an arrest unlawful under s. 9 of the Charter. Second, if this is the case — which is what I conclude — it must be asked whether s. 495(3) Cr. C., properly interpreted, precludes an accused from alleging such an infringement of s. 9 of the Charter and seeking a remedy under s. 24 of the Charter in the accused’s own trial. IV. Analysis A. Powers of Arrest Provided for in Section 495 Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-9", + "id": "scc-21317-9", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 23–24", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 24", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", - "current_to": "2016-03-29", + "text": "To properly identify the legal framework applicable to this appeal, and for ease of reference, I will reproduce in full s. 495 Cr. C., which establishes one of the powers of arrest without warrant held by peace officers and delineates the contours of this power: 495 (1) A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence; (b) a person whom he finds committing a criminal offence; or (c) a person in respect of whom he has reasonable grounds to believe that a warrant of arrest or committal, in any form set out in Part XXVIII in relation thereto, is in force within the territorial jurisdiction in which the person is found. (2) A peace officer shall not arrest a person without warrant for (a) an indictable offence mentioned in section 553, (b) an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, or (c) an offence punishable on summary conviction, in any case where (d) he believes on reasonable grounds that the public interest, having regard to all the circumstances including the need to (i) establish the identity of the person, (ii) secure or preserve evidence of or relating to the offence, or (iii) prevent the continuation or repetition of the offence or the commission of another offence, may be satisfied without so arresting the person, and (e) he has no reasonable grounds to believe that, if he does not so arrest the person, the person will fail to attend court in order to be dealt with according to law.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-10", + "id": "scc-21317-10", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 24–26", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", - "current_to": "2016-03-29", + "text": "(3) Notwithstanding subsection (2), a peace officer acting under subsection (1) is deemed to be acting lawfully and in the execution of his duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2).\n\nIt appears from the foregoing that s. 495(1)(a) Cr. C. gives a peace officer a power of arrest without warrant in three situations: where (1) a person has committed an indictable offence, (2) a person is about to commit an indictable offence, or (3) the peace officer believes on reasonable grounds that a person has committed an indictable offence. But the power so conferred is not absolute.\n\nThis is because s. 495 Cr. C. also includes subss. (2) and (3). These provisions were described by both parties as limiting, circumscribing or restricting a peace officer’s discretion to make an arrest without warrant. The nature and scope of these provisions are precisely what I clarify in these reasons. B. History of Arrest Without Warrant in Canada", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-11", + "id": "scc-21317-11", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 27", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur sécurité; (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.", - "current_to": "2016-03-29", + "text": "The power of peace officers to make arrests without warrant, which at one time involved very broad discretion, was the subject of a major reform in which the first iterations of the provisions that are now s. 495(2) and s. 495(3) Cr. C. were enacted. At the outset of the analysis, it is important to review the circumstances that led to their enactment, focusing more specifically on the report of the Canadian Committee on Corrections (“Committee”) entitled Report of the Canadian Committee on Corrections — Toward Unity: Criminal Justice and Corrections (1969) (“Ouimet Report”) and the parliamentary debates that preceded their enactment. (1) Ouimet Report", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-12", + "id": "scc-21317-12", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 28", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", - "current_to": "2016-03-29", + "text": "Until 1972, the Criminal Code did not regulate the exercise of the power of peace officers to make arrests without warrant on the basis that an indictable offence had been or was about to be committed or that a criminal offence was being committed. The Criminal Code simply stated the grounds required for an arrest to be legally justified, which can now be found in s. 495(1)(a) and (b) (see Crankshaw’s Criminal Code of Canada, R.S.C. 1985 (rev. ed. (loose‑leaf)), at § 495:HIST). At the time, the power of arrest without warrant was set out in the following terms in s. 449 of the Criminal Code, R.S.C. 1970, c. C‑34 (“Cr. C. (1970)”): 449. A peace officer may arrest without warrant (a) a person who has committed an indictable offence or who, on reasonable and probable grounds, he believes has committed or is about to commit an indictable offence or is about to commit suicide, (b) a person whom he finds committing a criminal offence, or (c) a person for whose arrest he has reasonable and probable grounds to believe that a warrant is in force within the territorial jurisdiction in which that person is found. However, no limitation was set out at the time in the Criminal Code to narrow the scope of the former s. 449 Cr. C. (1970), as is the case with the current s. 495(2) Cr. C., titled “Limitation” (“Restriction”).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-13", + "id": "scc-21317-13", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 29–30", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l’objet de la désignation visée au paragraphe 109.1(1) à la date de la décision; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; e) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant la perte de l’asile; (f) a decision of the Refugee Protection Division", - "current_to": "2016-03-29", + "text": "In the 1960s, the federal government established the Committee, chaired by Justice Roger Ouimet, to study Canada’s correctional system and recommend desirable legislative changes. In 1969, the Ouimet Report was released. The Committee concluded from its survey of the powers of peace officers in Canada that these powers maintained “a reasonable balance . . . between the requirements of the general security and the protection of the fundamental rights of the individual” (p. 49). The Committee nevertheless noted that the power of peace officers to make arrests without warrant was “broad” (p. 91). The Committee was of the view that arrests without warrant were too frequent and were often not justified in the public interest, because in many cases other methods would have sufficed to secure the accused’s attendance at trial (pp. 42 and 92).\n\nThe Committee accordingly recommended that the Criminal Code be amended to incorporate public interest criteria that would govern decisions about whether to make an arrest without warrant: The Committee therefore recommends that section 435 of the Criminal Code be amended to require not only reasonable grounds to believe that the person arrested has committed or is about to commit an indictable offence but also reasonable grounds to believe that immediate arrest is necessary in the public interest and to provide that a police officer may arrest a person whom he finds committing an offence punishable on summary conviction if he has reasonable grounds for believing that immediate arrest is necessary in the public interest. [Emphasis deleted; p. 92] (2) Enactment of the Bail Reform Act", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-14", + "id": "scc-21317-14", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 31–32", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", - "current_to": "2016-03-29", + "text": "On the strength of those recommendations, the then Minister of Justice, John N. Turner, introduced Bill C‑218, which would become the Bail Reform Act, S.C. 1970‑71‑72, c. 37 (reproduced in R.S.C. 1970, c. 2 (2nd Supp.)), once it received royal assent. The purpose of that statute was to implement two legislative reforms. The first was designed to limit the use of arrest by replacing it with other methods, such as a summons or an appearance notice. The second was aimed at remedying the injustice associated with cash bail, which had the effect of penalizing people who had limited financial resources and who were therefore obliged to find a surety. It is the first of these reforms that is of interest to us here, because it forms the backdrop against which the provisions equivalent to the current s. 495(2) and (3) Cr. C. were introduced.\n\nIn the House of Commons, Minister Turner explained the reasons that had led the government to propose such a reform of the powers of arrest conferred on peace officers. He stressed the importance of maintaining public confidence in peace officers (House of Commons Debates, vol. 3, 3rd Sess., 28th Parl., February 5, 1971, at p. 3114 (Hon. J. Turner)). Although the Minister emphasized the central role of arrest in the criminal process, he acknowledged that unnecessary arrests could undermine such confidence and that the law had to provide peace officers with clear guidelines for judging whether an arrest was necessary (p. 3114). The Minister therefore said that there was a need to reform the legislation governing arrests without warrant by peace officers.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-15", + "id": "scc-21317-15", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 33–34", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", - "current_to": "2016-03-29", + "text": "One of the bill’s stated objectives was to “avoid unnecessary pre‑trial arrest and detention” (House of Commons Debates, February 5, 1971, at p. 3116 (Hon. J. Turner)). According to Minister Turner, the law then in force did not give peace officers the “flexibility or the . . . guidelines” they needed to judge whether an arrest without warrant should be made (p. 3114). In order to avoid unnecessary arrests without warrant, he believed that a peace officer “should be obliged not to arrest without a warrant where he has reasonable and probable cause to believe that the public interest may be secured by proceeding other than by arrest” (with an exception being made, of course, for cases like murder or serious offences against public order) (ibid.).\n\nDiscussing more specifically how the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.) would limit the power of arrest, the Minister stated the following: . . . I assume that the criminal law in this country and every provision of it will be enforced with the best honest human judgment that it can be enforced by the police and the magistrates of this country. What this Bill does is alter the unfettered discretion of the police to arrest . . . to a discretion that he must exercise not to arrest in a number of offences where he has reasonable and probable grounds to believe that the public interest can be satisfied by not arresting. [Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 11, 3rd Sess., 28th Parl., March 4, 1971, at p. 14; see also pp. 10‑13)", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-16", + "id": "scc-21317-16", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 35–36", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", - "current_to": "2016-03-29", + "text": "That being the case, Parliament was aware of the heavy impact that those additional limitations might have on the work of peace officers. It recognized “that decisions by the police may have to be made under difficult conditions”, in other words, that peace officers might be called upon to make quick decisions in the heat of the action (House of Commons Debates, February 5, 1971, at p. 3116; see also p. 3117). It therefore sought to limit the consequences of such unnecessary arrests for peace officers themselves, notably by lessening the possibility of their conduct being the subject of criminal or penal proceedings relating more specifically to their personal liability, but also to that of any person responsible for those peace officers, such as their employer.\n\nMinister Turner explained in this regard that if a police officer made a mistake by arresting someone without warrant even though this was not permitted under the new limitations, “then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, No. 8, 3rd Sess., 28th Parl., February 23, 1971, at p. 7; see also pp. 8‑9). For a person arrested in violation of the then new limitations set out in the former s. 450(2) Cr. C. (1970) (now s. 495(2) Cr. C.), the only possible remedy was an award of damages in a civil suit relating more specifically to the conduct of the peace officer who made the arrest without warrant.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-17", + "id": "scc-21317-17", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 37", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", - "current_to": "2016-03-29", + "text": "To the question of what would happen if a peace officer made an arrest contrary to s. 495(2) Cr. C., Minister Turner replied as follows: If he arrests and it later turns out that, in judgment, he did not need to arrest because the public interest would have been served just as well or better by not arresting, then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest. . . . That means that the person who wants to sue civilly for having been brought in to the desk and booked must establish that the policeman did have reasonable and probable grounds to believe that the public interest could be satisfied without so arresting him. Instead of the policeman having to show that he had reasonable and probable grounds for arresting, the person brought in had to show that there were reasonable and probable grounds for not arresting. In a doubtful case that gives the benefit of doubt to the policeman who has to make this snap judgment. . . . So there are two separate situations here. If there were no grounds to arrest at all then the burden of proof is on the policeman. If there were grounds to arrest but under this new Bill he did not have to arrest, then the burden of proof is on the person to show that he need not have been brought in, although there was justification for arresting him. There are two separate situations there. In other words, there are two factors that policemen have to decide. First of all is there grounds for arresting at all? Secondly, if there are grounds for arresting, are there grounds for bringing him in? On the first the burden of proof is on the policeman in civil cases, on the second the burden of proof is on the person who was brought in.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-18", + "id": "scc-21317-18", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 25", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 37–39", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", - "current_to": "2016-03-29", + "text": "[Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at pp. 7‑9)\n\nSimilar remarks were made again by Minister Turner before the Committee, though in different terms (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14): Subsection (3) . . . says that notwithstanding the failure of a police officer to exercise his discretion properly in accordance with the Bill — you know, we are dealing with human judgments here — if the police officer makes the wrong judgment, he is going to be protected under paragraph (a) from a criminal suit, as he is now, but he is not protected under paragraph (b) from a civil suit. All that paragraph (b) says is that he is open to a civil suit if he makes a mistake in judgment but the burden of proof is on the person who feels that he has been wronged by the exercise of that judgment. So the ultimate sanction is a civil suit and . . . I believe that the police of this country, if they accept this Bill as I believe they will be, and I am trying to listen to their objections both at the brotherhood level, and the association level, and the chiefs of police level — I think . . . they will try to live within its sphere. [Emphasis added.]\n\nThe Bail Reform Act came into force on January 3, 1972. There have been no substantive amendments to the former s. 450(2) and (3) Cr. C. (1970) since the initial enactment thereof. C. Jurisprudence on the Interpretation of Section 495(2) and (3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-19", + "id": "scc-21317-19", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 25–27", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 40–43", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", - "current_to": "2016-03-29", + "text": "Appellate courts across the country have adopted an interpretation of s. 495(2) and (3) Cr. C. that is more in line with the approach put forward by the Crown in this case. This is, in the words of Healy J.A., the “dominant view” (C.A. reasons, at para. 12, fn. 12). I propose to outline it by looking first at decisions rendered before the Charter was enacted in 1982, then at those rendered after its enactment. (1) Pre‑Charter Decisions\n\nShortly after the passage of the Bail Reform Act, the current s. 495(3) Cr. C. was considered by several appellate courts in this country. In all of those cases, one of the charges involved was that of unlawfully resisting arrest (now s. 129(a) Cr. C.; formerly s. 118(2)).\n\nIn R. v. Adams (1972), 21 C.R.N.S. 257, the Saskatchewan Court of Appeal held that s. 495(3) “must be construed as denying the right to raise a defence, based on the non‑compliance with subs. (2), in any proceedings under the Code or under any other Act of Parliament” (p. 260). The court added that, in its opinion, “because of subs. (3) no reliance can be placed on subs. (2) to establish that the peace officer, for non‑compliance with the requirements of that subsection, was not acting lawfully and in the execution of his duty” (ibid.).\n\nThat reasoning was followed by the courts of appeal of British Columbia and Alberta, respectively, in R. v. McKibbon (1973), 12 C.C.C. (2d) 66 (B.C.C.A.), at p. 70, and R. v. Fuhr, [1975] 4 W.W.R. 403 (Alta. C.A.), at p. 406.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-20", + "id": "scc-21317-20", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 28–29", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", - "division": "", - "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", - "current_to": "2016-03-29", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 44–45", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", + "division": "", + "text": "In McKibbon, the respondent was charged with assaulting a peace officer with intent to resist lawful arrest, although no charge was laid against him for the underlying offence of impaired driving. The British Columbia Court of Appeal followed Adams and concluded as follows: [Subsection (3)], which specifically applies notwithstanding s‑s. (2), makes it clear that a peace officer who acts under s‑s. (1)(a) is deemed to be acting lawfully for the purposes, inter alia, of any proceedings under the Criminal Code. In my view, that means that as he is arresting without warrant with the grounds and belief set out in s‑s. (1)(a), he is still acting lawfully and his arrest is lawful. [p. 70]\n\nIn Fuhr, the Alberta Court of Appeal also followed Adams in the context of a charge of unlawfully resisting a peace officer engaged in the execution of his duty: I am of the view that the limitations set out in subs. (2) of the powers granted a peace officer under subs. (1) do not afford a defence to the present charge, in view of the deeming words found in subs. (3). Subsection (3) provides that if a peace officer is acting under subs. (1), he is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Code. [p. 406]", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-21", + "id": "scc-21317-21", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 30", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 46–47", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", - "current_to": "2016-03-29", + "text": "It goes without saying that the question of whether a motion under s. 9 of the Charter could be brought to challenge the validity of an arrest contrary to s. 495(2) Cr. C. was not addressed in those cases, as the Charter had not yet been enacted. Prior to its enactment, the recourses available to an accused who had been unlawfully arrested were very limited and amounted mainly to the possibility of raising a defence against a charge of obstruction or resisting arrest. Not only did peace officers have broad discretion at the time to make arrests without warrant, but courts could exercise their discretion to exclude evidence only in rare circumstances, where a very high threshold was met (R. v. Wray, [1971] S.C.R. 272, at p. 293; see also S. Coughlan, “Threading Together Abuse of Process and Exclusion of Evidence: How it Became Possible to Rebuke Mr. Big” (2015), 71 S.C.L.R. (2d) 415, at pp. 429‑30). Among other things, courts did not have the power — which they do today under s. 24 of the Charter— to exclude evidence on the ground that its admission would bring the administration of justice into disrepute (Wray, at p. 287, per Martland J.).\n\nThe decisions rendered by certain appellate courts in this country on the interpretation of s. 495(3) Cr. C. following the enactment of the Charter in 1982 merit particular attention. Indeed, the analysis in those decisions is based on the law applicable since the coming into force of the Charter, just like the analysis that this Court must undertake in the instant case. (2) Post‑Charter Decisions", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-22", + "id": "scc-21317-22", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 31–32", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 48–49", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", - "current_to": "2016-03-29", + "text": "Since the advent of the Charter, most of the decisions interpreting s. 495(3) Cr. C. and its interaction with s. 9 of the Charter have found that every criminal proceeding — regardless of the identity of the accused — is a “proceedin[g] under [the Criminal Code] or any other Act of Parliament” contemplated by s. 495(3)(a) Cr. C.\n\nIn R. v. Cayer (1988), 28 O.A.C. 105, a decision rendered by the Ontario Court of Appeal in 1988, the issue was whether the effect of s. 495(3)(a) Cr. C. was that an arrest authorized by s. 495(1) Cr. C. became unlawful where the requirements of s. 495(2) Cr. C. were breached. The Ontario Court of Appeal, relying on the reasons given in Adams and McKibbon, adopted the following interpretation of s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) (at para. 33): . . . notwithstanding subs. (2), a peace officer exercising his power under s. 450(1) is deemed to be acting lawfully and in the execution of his duty for the purposes of any proceedings under the Criminal Code or any other Act of Parliament. Thus, a peace officer exercising his power of arrest without warrant under s. 450(1) is deemed by s. 450(3) to be acting lawfully for the purpose of any proceedings under the Code or any other Act of Parliament, even though, in arresting a person without warrant he has breached the duty imposed on him by s. 450(2) not to arrest the accused in the circumstances therein specified . . .", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-23", + "id": "scc-21317-23", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 33–36", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 50–51", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", - "current_to": "2016-03-29", + "text": "Further on, the Ontario Court of Appeal added that “[t]he fact that the arrest may contravene s. 450(2) [now s. 495(2)] of the Code does not ipso facto make it arbitrary under s. 9 of the Charter. If the arrest does contravene s. 450(2) of the Code, it is, of course, lawful under s. 450(3)” (Cayer, at para. 46). The court ultimately concluded that there had been no contravention of s. 495(2) because it was not “unreasonable in the public interest to arrest the accused to prevent the continuation or repetition of the offence” (para. 47).\n\nNearly 30 years later, in R. v. Jowett Work, 2019 BCCA 236, 379 C.C.C. (3d) 187, the British Columbia Court of Appeal also had to interpret s. 495(3) Cr. C. In that case, the accused had been arrested without warrant for theft and, in a search incident to the arrest, the police had discovered drugs. During the voir dire to determine the lawfulness of the arrest, the trial judge found that the officers had breached the requirements of s. 495(2) Cr. C., thereby making the arrest unlawful.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-24", + "id": "scc-21317-24", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 37–38", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 52–53", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", - "current_to": "2016-03-29", + "text": "The British Columbia Court of Appeal allowed the Crown’s appeal and admitted the evidence from the search incident to the arrest. The court noted that s. 495(3)(a) Cr. C. expressly applies “for the purpose of ‘any proceedings’ under the Criminal Code” (Jowett Work, at para. 38). In the court’s view, the effect of the provision is to make the peace officer’s conduct “lawfu[l] and the arrest . . . lawful as long as the Crown establishes that the officer had reasonable and probable grounds to arrest under s. 495(1)(a) or (b)” (para. 32). Thus, in its opinion, there was no need to consider s. 495(2) Cr. C., as any non‑compliance with that provision would not, in a criminal proceeding, render an otherwise lawful arrest unlawful, in light of the presumption of lawfulness in s. 495(3)(a) Cr. C. (para. 30).\n\nIn R. v. Veen, 2022 ABCA 350, 51 Alta. L.R. (7th) 417, the Alberta Court of Appeal in turn addressed the interpretation of s. 495(3) Cr. C. In that case, the accused had been arrested and then detained at the police station after being found by the police in the driver’s seat of his truck with an empty beer can nearby. In a voir dire based on s. 9 of the Charter held during his trial, the accused challenged the lawfulness of his arrest, believing it to be contrary to s. 495(2) Cr. C. The Alberta Court of Queen’s Bench (sitting on appeal from the decision of the Alberta Provincial Court) granted the accused’s request for a voir dire and excluded the evidence obtained following the arrest. In its opinion, “[s]ubsection (3) should not be interpreted as overriding the duty not to arrest[, because it] is relevant in instances where a police officer is facing criminal liability” (R. v. Veen, 2020 ABQB 99, 10 Alta. L.R. (7th) 192, at para. 74).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-25", + "id": "scc-21317-25", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 39–40", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 54–55", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", - "current_to": "2016-03-29", + "text": "For its part, the Alberta Court of Appeal was of the view that the appeal should be allowed and the evidence obtained following the accused’s arrest admitted. It found that while the police officer may have made a mistake in judgment by arresting the accused without warrant, that mistake did not negate the lawfulness of the arrest under s. 495(3)(a) Cr. C. As a result, the accused could not raise non‑compliance with s. 495(2) Cr. C. as a defence. However, the Court of Appeal specified that this type of mistake could be the subject of a civil suit or internal disciplinary measures against the police officer concerned under s. 495(3)(b) Cr. C. In support of that conclusion, the Court of Appeal relied in part on pre‑Charter case law as well as on the wording of s. 495(3)(a) Cr. C. itself and the parliamentary debates. D. Principles of Statutory Interpretation\n\nThere is now only one approach to statutory interpretation in Canada, namely the approach requiring that the words of a provision be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament” (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, quoting E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87; see also R. v. Basque, 2023 SCC 18, at para. 63; R. v. Wolfe, 2024 SCC 34). I will therefore use this approach to first determine the proper interpretation to be given to s. 495(2) Cr. C., and I will then do the same for s. 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-26", + "id": "scc-21317-26", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 41–43", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 56–58", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", - "current_to": "2016-03-29", + "text": "In this case, the wording of the provisions to be interpreted concerning the power of arrest without warrant came into force nearly a decade before the enactment of the Charter, which introduced new safeguards in relation to arrest. In this context, it is important to remember that the statutory interpretation exercise is focused “on the intent of the legislature at the time of enactment and courts are bound to give effect to that intent” (Telus Communications Inc. v. Federation of Canadian Municipalities, 2025 SCC 15, at para. 32 (emphasis added); see also paras. 33‑36; Perka v. The Queen, [1984] 2 S.C.R. 232, at pp. 264‑66; R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295, at p. 335; United States of America v. Dynar, [1997] 2 S.C.R. 462, at para. 45; P.‑A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at para. 24; R. Sullivan, The Construction of Statutes (7th ed. 2022), at § 6.01[1]).\n\nHaving briefly outlined these principles, I turn now to the interpretation of s. 495(2) Cr. C. E. Interpretation of Section 495(2) Cr. C.: Can Non‑compliance With Section 495(2) Cr. C. Have the Effect of Making an Arrest Without Warrant Unlawful and Thus Arbitrary Within the Meaning of Section 9 of the Charter? (1) Text of Section 495(2) Cr. C.\n\nAs I indicated at the outset, the modern approach to statutory interpretation makes the text the “anchor of the interpretative exercise”, because the text specifies the means chosen by Parliament to achieve its purposes and attain its goals (Piekut v. Canada (National Revenue), 2025 SCC 13, at para. 45, quoting Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Directrice de la protection de la jeunesse du CISSS A, 2024 SCC 43, at para. 24).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-27", + "id": "scc-21317-27", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 44–45", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 59–60", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", - "current_to": "2016-03-29", + "text": "In general terms, s. 495(2) Cr. C. provides that a peace officer shall not arrest a person without warrant in certain circumstances, but only for a restricted number of offences. The scope of s. 495(2) Cr. C. is therefore limited — the provision applies only to hybrid offences and offences punishable on summary conviction, as well as to the indictable offences mentioned in s. 553 Cr. C. The offences referred to in s. 553 Cr. C. are indictable offences within the exclusive jurisdiction of a provincial court judge (e.g., theft (other than theft of cattle), betting, breach of a recognizance or failure to comply with a probation order). By operation of s. 34 of the Interpretation Act, R.S.C. 1985, c. I‑21, s. 495(2)(b) and s. 495(2)(c) Cr. C. also apply to offences created by legislation other than the Criminal Code, including the Controlled Drugs and Substances Act, S.C. 1996, c. 19, or other Acts of Parliament.\n\nSection 495(2) prevents a peace officer from making an arrest without warrant where two requirements are met. First, the peace officer must believe on reasonable grounds that the public interest may be satisfied without making an arrest without warrant (s. 495(2)(d)). Second, the peace officer must have no reasonable grounds to believe that, if he or she does not arrest the person without warrant, the person will fail to attend court (s. 495(2)(e)).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-28", + "id": "scc-21317-28", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 46–48", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 61–62", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", - "current_to": "2016-03-29", + "text": "I note, as the parties do, that s. 495(2) Cr. C. applies only when the two requirements set out in s. 495(2)(d) and (e) Cr. C. are met. The use of the word “and” at the end of the English version of s. 495(2)(d) Cr. C., and of the expressions “d’une part” and “d’autre part” in the French version of s. 495(2)(d) and (e), clearly supports such a cumulative reading. A peace officer cannot make an arrest without warrant if the requirements of s. 495(2) Cr. C. are met. However, if one of the requirements is not met, the officer can arrest a person without warrant. To conclude otherwise would in fact have the absurd consequence of preventing a peace officer from making an arrest without warrant, thereby running the risk, for example, of allowing evidence to be destroyed right before his or her eyes, even if the officer does not consider the person to be a flight risk. Parliament cannot have intended such a result.\n\nIt follows that, in a scenario where one of the conditions in s. 495(2) Cr. C. was not met, a peace officer could make an arrest without warrant under s. 495(1) Cr. C. Thus, the peace officer would be authorized to make such an arrest if he or she believed on reasonable grounds that it was necessary to do so, either to satisfy the public interest or to ensure the person’s appearance in court. Conversely, the peace officer could not make such an arrest if it was not necessary to do so in order to satisfy the public interest or to ensure the person’s attendance in court.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-29", + "id": "scc-21317-29", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 49–52", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 63–64", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", - "current_to": "2016-03-29", + "text": "I turn my attention now to the heart of the appellant’s argument with respect to s. 495(2) Cr. C. Does the text of this provision suggest that peace officers have a mandatory obligation to verify that the two requirements set out in s. 495(2)(d) and (e) Cr. C. are not met before making an arrest without warrant, or does it only constitute non‑binding guidelines whose purpose is simply to delineate the exercise of their discretion?\n\nThere are very strong textual indications within s. 495(2) Cr. C. that this provision is of a mandatory nature. The English text of s. 495(2) Cr. C. states that a peace officer “shall not” arrest a person without warrant where the two requirements mentioned are met. In my view, an obligation not to make an arrest can be inferred from the use of the words “shall not arrest” (“ne peut arrêter” in the French version).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-30", + "id": "scc-21317-30", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 53–54", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 65–66", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", - "current_to": "2016-03-29", + "text": "This Court wrote in Bessette v. British Columbia (Attorney General), 2019 SCC 31, [2019] 2 S.C.R. 535, at para. 25, that the rule of interpretation codified in s. 11 of the Interpretation Act provides that “‘[s]hall’ is mandatory language” (“[l]e présent de l’indicatif indique l’obligation”). In this case, the use of the expression “shall not” (“ne peut”) reflects Parliament’s intention to achieve its objectives (to which I will return) by imposing on peace officers a strict prohibition against arresting a person without warrant where certain cumulative conditions are met. As with many other provisions of the Criminal Code, the word “shall” (and, in French, the use of the present indicative) in s. 495(2) Cr. C. should be construed as expressing an obligation; the word “shall” should be understood to mean “must” (see, e.g., R. v. Johnson, 2003 SCC 46, [2003] 2 S.C.R. 357, at para. 16; see also Baron v. Canada, [1993] 1 S.C.R. 416, at pp. 422‑23). It thus differs from the word “may” (“pouvoir”), which generally “connotes a measure of discretion” (Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 54).\n\nIn short, the text of the provision suggests that, in practice, peace officers have an obligation, before making any arrest without warrant, to assess whether the public interest can be satisfied and the person’s attendance in court ensured in some other way. This would therefore mean that peace officers should refrain from making such an arrest where they believe on reasonable grounds that these two conditions are met. (2) Context", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-31", + "id": "scc-21317-31", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 55–56", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 67–69", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", - "current_to": "2016-03-29", + "text": "The context of s. 495(2) Cr. C. also supports this interpretation. For a clear understanding of the scope of this provision, it is important to look first at the relationship between s. 495(1) and s. 495(2) Cr. C. and then at the relationship between s. 495(2) and s. 495(3) Cr. C. (a) Relationship Between Section 495(1) and Section 495(2) Cr. C.\n\nIn legislative drafting, it is common practice to begin by formulating a general rule and then to clarify or narrow the rule by means of more specific provisions. In such cases, the general rule and the specific rules must be read together: the specific rules qualify the general rule stated first and reveal its true scope in a particular situation (Côté and Devinat, at paras. 1074 et seq.).\n\nThis is precisely the logic underlying the relationship between s. 495(1) and s. 495(2) Cr. C. Section 495(2) Cr. C. does not create a freestanding power of arrest without warrant. This power has its normative source exclusively in s. 495(1) Cr. C. As many have already pointed out, s. 495(1) Cr. C. remains the foundation and cornerstone of the power of arrest without warrant (Jowett Work, at para. 34; Veen (C.A.), at para. 34; J. A. Scollin, The Bail Reform Act: An Analysis of Amendments to the Criminal Code Related to Bail and Arrest (1972), at p. 4). Section 495(2) Cr. C. must therefore be understood as a provision that serves to limit the scope of the general power of arrest provided for in s. 495(1) Cr. C. when certain requirements are met.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-32", + "id": "scc-21317-32", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 57–59", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 70", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", - "current_to": "2016-03-29", + "text": "It is thus incorrect to say that s. 495(2) Cr. C. permits the exercise of such a power regardless of the conditions set out in s. 495(1) Cr. C. Section 495(2) Cr. C. cannot come into play unless a peace officer first believes on reasonable grounds that an indictable offence has been or is about to be committed, the officer finds a person committing a criminal offence or the officer has reasonable grounds to believe that there is a warrant for the person’s arrest or committal, in accordance with s. 495(1) Cr. C. (Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at para. 91). It logically follows that the determination of whether s. 495(2) Cr. C. applies must always begin with the question of the application of s. 495(1) Cr. C.: if the latter does not apply or is not complied with, consideration of s. 495(2) Cr. C. becomes moot.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-33", + "id": "scc-21317-33", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 60–61", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 71–72", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", - "current_to": "2016-03-29", + "text": "In summary, s. 495(1) Cr. C. differs from s. 495(2) in that it provides that a peace officer “may arrest without warrant . . . a person” (“peut arrêter sans mandat . . . une personne”), whereas s. 495(2) Cr. C. instead says “shall not arrest a person without warrant” (“ne peut arrêter une personne sans mandat”). Section 495(1) Cr. C. is therefore permissive, because it makes a grant of powers, rights, authorizations or permissions (Interpretation Act, s. 11, the French version of which refers to “[l]’octroi de pouvoirs, de droits, d’autorisations ou de facultés”) and thus connotes the existence of “an area of discretion” (Smith & Rhuland Ltd. v. The Queen, [1953] 2 S.C.R. 95, at p. 97). The contrast between “may” (“peut”) and “shall not” (“ne peut”) in s. 495 Cr. C. reinforces the idea that Parliament’s intention was to confer a certain degree of discretion on peace officers in s. 495(1) Cr. C. but to impose an obligation or duty on them in s. 495(2) Cr. C. (see, e.g., Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403, at para. 108, per La Forest J., dissenting, but not on this point).\n\nI also observe that the marginal note to s. 495(2) Cr. C. is titled “Limitation” (“Restriction”). While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it does serve as an additional indication that s. 495(2) Cr. C. should be interpreted as imposing binding limitations on the powers set out in s. 495(1) Cr. C. (b) Relationship Between Section 495(2) and Section 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-34", + "id": "scc-21317-34", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 62–64", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 73–75", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", - "current_to": "2016-03-29", + "text": "Continuing with my analysis of the context of the provision, I will look at the relationship between s. 495(2) Cr. C. and s. 495(3) Cr. C. I note that the very existence of s. 495(3) Cr. C. is a contextual element of no small importance in confirming the binding and mandatory nature of s. 495(2) Cr. C. Indeed, if s. 495(2) Cr. C. had no normative import, there would have been no need to create a form of presumption of lawfulness “[n]otwithstanding subsection (2)” (“[n]onobstant le paragraphe (2)”) in s. 495(3) Cr. C. Section 495(3) Cr. C. therefore also suggests that s. 495(2) Cr. C. imposes a real obligation, since subs. (3) contains protective mechanisms in the event of non‑compliance with subs. (2). (c) Conclusion on the Context of Section 495(2) Cr. C.\n\nIn summary, an analysis of the context of s. 495(1), (2) and (3) Cr. C. reveals a coherent legislative structure in which each provision plays a complementary role. Section 495(1) Cr. C. creates a power of arrest without warrant, while s. 495(2) Cr. C. strictly regulates the exercise of this power by imposing binding limitations. The existence of s. 495(3) Cr. C. confirms the normative character of s. 495(2) Cr. C. by setting out protective mechanisms in the event of non‑compliance. (3) Purpose of Section 495(2) Cr. C.\n\nInterpreting s. 495(2) Cr. C. as limiting a peace officer’s power of arrest is also consistent with the purpose of this provision.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-35", + "id": "scc-21317-35", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 65–66", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 76–77", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", - "current_to": "2016-03-29", + "text": "Indeed, as I mentioned above, s. 495(2) Cr. C. was enacted as part of a bill aimed at reducing “unnecessary pre‑trial arrest and detention” by limiting “discretionary injustice” (House of Commons Debates, February 5, 1971, at p. 3116; see also pp. 3114 and 3118). To achieve this objective, Parliament wanted “new duties . . . placed on the police to direct their minds to what the public interest requires”, but also wanted peace officers to be given the “flexibility or the . . . guidelines that would help [them] in judging whether or not an arrest should be made” (pp. 3114 and 3116‑17 (Hon. J. Turner)).\n\nThe appellant interprets this passage from the parliamentary debates as indicating that Parliament’s objective was to increase the discretion of peace officers to make arrests without warrant (A.F., at para. 44). I respectfully disagree.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-36", + "id": "scc-21317-36", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 67–68", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 78", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", - "current_to": "2016-03-29", + "text": "Even though Parliament, as part of its legislative reform, equipped peace officers with new tools to avoid resorting to arrest — such as the possibility of issuing an appearance notice — its intention and the legislative objective were not to leave their discretion intact, but rather to limit it. In keeping with the stated objective of reducing unnecessary arrests without warrant, Minister Turner explained that the legislation was meant to “alter the unfettered discretion of the police to arrest” that had existed until then under the Criminal Code, so as to limit it to “a discretion that he must exercise not to arrest in a number of offences where he has reasonable and probable grounds to believe that the public interest can be satisfied by not arresting” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14). Thus, Minister Turner emphasized that the bill “convert[ed] the discretion into a duty not to arrest” when certain requirements were met (p. 9 (emphasis added)).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-37", + "id": "scc-21317-37", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 69–71", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 79–81", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", - "current_to": "2016-03-29", + "text": "In my opinion, Parliament intended that a peace officer’s exercise of the power of arrest without warrant be strictly regulated through the mandatory requirements of s. 495(2) Cr. C. in order to promote the public interest and ensure the person’s appearance in court. The purpose of s. 495(2) Cr. C. is therefore clear: it is to limit the discretion of police officers by identifying the situations in which an arrest without warrant is not required in order to reduce what are considered to be unnecessary arrests. Interpreting s. 495(2) Cr. C. as simply setting out guidelines would therefore be contrary to what Parliament intended, since it would not effectively assist in reducing unnecessary arrests without warrant. (4) Constitutionality of the Public Interest Criterion\n\nThe appellant argues that finding s. 495(2) Cr. C. to be mandatory would raise constitutional issues because of the overly vague nature of the public interest criterion (A.F., at paras. 53, 82 and 84). The appellant relies in particular on R. v. Morales, [1992] 3 S.C.R. 711, in which this Court held that “the criterion of ‘public interest’ as a basis for pre‑trial detention under s. 515(10)(b) violate[d] s. 11(e) of the Charter because it authorize[d] detention in terms which [were] vague and imprecise” (p. 726).\n\nHere, the Court does not have squarely before it a constitutional challenge to s. 495(2)(d) Cr. C. based on s. 7 of the Charter and the constitutional doctrine of vagueness, as it did in Morales. Nor does the Court have before it a constitutional challenge to the “public interest” criterion in s. 495(2)(d) Cr. C. under s. 9 of the Charter. In my view, this is sufficient to reject the appellant’s arguments in this regard. (5) Conclusion on the Interpretation of Section 495(2) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-38", + "id": "scc-21317-38", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 72–74", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 82–83", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", - "current_to": "2016-03-29", + "text": "I therefore find that an analysis of the text, context and purpose of s. 495(2) Cr. C. leads to the conclusion that the limitations imposed on the power of arrest without warrant are mandatory in nature. This provision requires peace officers, in order to properly exercise their discretion to arrest a person without warrant, to assess whether the arrest is justified in the public interest and whether there is a risk that the accused will not appear. When the conditions set out in para. (d), para. (e) and any of paras. (a) to (c) of s. 495(2) Cr. C. are met, an arrest without warrant is prohibited. Thus, peace officers contravene s. 495(2) Cr. C. where they fail to assess these criteria before acting or where they — wrongly — make an arrest without warrant when the conditions (if they are met) do not permit them to do so.\n\nIt follows from the above that an arrest contrary to s. 495(2) Cr. C. is unlawful because it is contrary to this law, which suffices to characterize said arrest as arbitrary within the meaning of s. 9 of the Charter. Indeed, since the enactment of the Charter in 1982, this Court has had occasion to state that an unlawful arrest or detention, including one not authorized by law, is necessarily an arbitrary arrest or detention and infringes s. 9 of the Charter (R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at para. 54; R. v. Tim, 2022 SCC 12, [2022] 1 S.C.R. 234, at paras. 21‑22; R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 124).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-39", + "id": "scc-21317-39", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 75–76", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 84–85", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", - "current_to": "2016-03-29", + "text": "Since I am of the view that an arrest contrary to the law established by s. 495(2) Cr. C. results in this arrest made in violation of binding norms being unlawful, this is sufficient to characterize such an arrest as arbitrary within the meaning of s. 9 of the Charter. The question that now remains is whether the effect of s. 495(3) Cr. C. is to shield such an arrest from being found unlawful and thus arbitrary under s. 9 of the Charter, such that it would be manifestly frivolous to conduct a voir dire to determine, in a criminal proceeding (such as the trial of the respondent in this case), the lawfulness of a police arrest — as the trial judge held. F. Interpretation of Section 495(3) Cr. C.: Does Section 495(3) Cr. C. Apply Where a Criminal Proceeding Is Not Against the Peace Officer Who Made the Arrest?\n\nThe main source of disagreement between the parties with respect to s. 495(3) Cr. C. lies in para. (a) of this provision. This paragraph sets out the presumption that, notwithstanding s. 495(2) Cr. C., a peace officer who complies with s. 495(1) is “acting lawfully and in the execution of his duty” for the purposes of various proceedings, subject to certain conditions.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-40", + "id": "scc-21317-40", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 77–79", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 86", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", - "current_to": "2016-03-29", + "text": "It is not in dispute that this paragraph serves, among other things, to provide a peace officer who has made an arrest without warrant with protection in a criminal proceeding where that officer is personally facing a criminal charge for failure to comply with s. 495(2) Cr. C., despite the fact that the officer complied with s. 495(1) Cr. C. As Minister Turner explained, the bill was drafted in such a way that a peace officer could not be prevented from acting “for fear of a criminal suit in the exercise of his discretion” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 11). It is also not in dispute that s. 495(3)(b) Cr. C. nevertheless allows a person who has been arrested and believes the arrest to be contrary to s. 495(2) Cr. C. to bring a civil suit against the peace officer, or the officer’s employer, in order to establish that the officer did not comply with the requirements of s. 495(2) Cr. C. and thus to obtain damages as a remedy (see, e.g., Hudson v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 390 (Ont. C.A.); Collins v. Brantford Police Services Board (2001), 158 C.C.C. (3d) 405 (Ont. C.A.)).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-41", + "id": "scc-21317-41", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 80–83", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 87–88", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", - "current_to": "2016-03-29", + "text": "However, the appellant proposes a broader interpretation of this provision. He argues that s. 495(3)(a) Cr. C. is not confined to criminal proceedings in which a person — particularly the peace officer who made the arrest without warrant, but also, for example, the officer’s employer — is facing criminal liability for non‑compliance with s. 495(2) Cr. C. According to the appellant, s. 495(3)(a) applies more broadly to all criminal proceedings, including the trial of the respondent in this case. In other words, an arrest made in compliance with s. 495(1) Cr. C. would be presumed to be lawful for the purposes of “any proceedings” under the Criminal Code or any other Act of Parliament, regardless of the proceeding and the statute under which it is brought, and regardless of the identity of the accused and the basis for the charges laid against him or her. Other than in the decision under appeal before us, this interpretation is the one that has generally been adopted thus far by appellate courts in the other provinces (see for example: Veen, Jowett Work and Cayer).\n\nThe effect of such an interpretation is as follows: an arrest contrary to s. 495(2) Cr. C. will necessarily be lawful because of s. 495(3) Cr. C. and will not make an arrest arbitrary within the meaning of s. 9 of the Charter. Consequently, a motion under s. 9 of the Charter — alleging non‑compliance with s. 495(2) Cr. C. — will inevitably have to be dismissed, as it will be doomed to failure from the start.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-42", + "id": "scc-21317-42", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 84–86", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 89–91", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", - "current_to": "2016-03-29", + "text": "In my view, when read in light of the context and purpose of the provision, its text weighs in favour of a narrow interpretation of s. 495(3)(a) Cr. C. that is confined to preventing a peace officer or any person to whom the officer reports from being held liable in a proceeding under the Criminal Code or any other Act of Parliament for non‑compliance with s. 495(2) Cr. C. This therefore means that one of the effects of s. 495(3)(a) Cr. C. is that a peace officer cannot be held criminally liable, in a criminal proceeding against the officer, for having contravened s. 495(2) Cr. C. when arresting a person without warrant. Despite its broad and general language, s. 495(3) Cr. C. applies in a very narrow and specific context, namely where the liability of a peace officer or a person responsible for that officer is in issue on the ground that the peace officer allegedly breached the requirements of s. 495(2) Cr. C., even though the officer complied with those of s. 495(1) Cr. C.\n\nSection 495(3) Cr. C. therefore does not apply in the criminal trial of the person arrested without warrant. Nor does it apply where a Charter motion is brought in the course of such a criminal trial. It follows that accused persons can assert in their own criminal trial that their arrest without warrant, which they believe to be contrary to s. 495(2) Cr. C., constitutes an infringement of the Charter.\n\nTo support this reasoning, I consider the text, context and purpose of the provision. This leads me to conclude that the interpretive approach adopted by certain appellate courts — including that of the Court of Appeal in some respects in this case — is, and I say this with great respect, incorrect. (1) The Text of Section 495(3) Cr. C. Supports Two Interpretations", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-43", + "id": "scc-21317-43", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 87", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 92–94", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", - "current_to": "2016-03-29", + "text": "I begin my analysis by focusing on the text of s. 495(3) Cr. C. Generally speaking, the language of s. 495(3) Cr. C. can be described as establishing a presumption of lawfulness. Indeed, this provision states that, notwithstanding s. 495(2) Cr. C., a peace officer acting under s. 495(1) “is deemed to be acting lawfully and in the execution of his duty” in two situations: (1) for the purposes of any proceedings under the Criminal Code or any other Act of Parliament (s. 495(3)(a) Cr. C.); and (2) for the purposes of any other proceedings, unless the person alleging a contravention of s. 495(2) Cr. C. establishes that the peace officer did not comply with the requirements of s. 495(2) Cr. C. (s. 495(3)(b) Cr. C.).\n\nThe text of s. 495(3)(b) Cr. C. is clear. The parties all agree that this provision does not prevent a person who alleges an arrest contrary to s. 495(2) Cr. C. from bringing a civil suit against the arresting peace officer or a person responsible for that officer for non‑compliance with s. 495(2) Cr. C.\n\nThis provision gives the peace officer or a person responsible for that officer the benefit of a rebuttable presumption to the effect that the officer acted lawfully and in the execution of his or her duty, that is, in compliance with the requirements of s. 495 Cr. C. This presumption can be displaced. The person arrested must be able to show that the requirements of s. 495(2) Cr. C. directing the peace officer not to make an arrest without warrant were met, in other words, that the peace officer believed on reasonable grounds that the public interest could be satisfied without so arresting the person and that there was no risk of the person failing to appear in court.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-44", + "id": "scc-21317-44", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 88", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 95–97", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", - "current_to": "2016-03-29", + "text": "It is possible that s. 495(3)(b) Cr. C. also covers police conduct proceedings under provincial or federal legislation enacted to that end. However, there is no need to decide this question for the purposes of this appeal.\n\nWith regard to s. 495(3)(a) Cr. C., the appellant and all of the intervening attorneys general propose a reading of the text that is related to the arrest, emphasizing the grammatical and ordinary meaning of the phrase “any proceedings under [the Criminal Code] or any other Act of Parliament” (see Veen (C.A.), at para. 50). They take the view, as the Alberta Court of Appeal found in Veen, that if Parliament had intended that s. 495(3)(a) Cr. C. essentially be confined to preventing peace officers — or their employers — from being convicted of an offence in a criminal proceeding on the basis of non‑compliance with s. 495(2) Cr. C., then Parliament could easily have said so (see also I.F., Attorney General of Ontario, at paras. 10‑22; I.F., Attorney General of Alberta, at paras. 17‑20; Veen (C.A.), at para. 50). However, they argue, Parliament did not express itself in such a narrow fashion. It is therefore clear, in their opinion, that s. 495(3)(a) Cr. C. would apply even in the criminal trial of the person arrested without warrant, like the trial of the respondent in this case, because it would be — in a broad sense — a proceeding under the Criminal Code or any other Act of Parliament.\n\nIn my view, the grammatical and ordinary meaning of s. 495(3)(a) Cr. C. also supports another interpretation, one that is more consistent with the provision’s purpose and context that I consider below.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-45", + "id": "scc-21317-45", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 88–89", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 98–99", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", - "current_to": "2016-03-29", + "text": "I draw attention to the wording chosen by Parliament: “. . . a peace officer acting under [s. 495(1)] is deemed to be acting lawfully and in the execution of his duty” (“. . . un agent de la paix agissant aux termes du [par. 495(1)] est censé agir légalement et dans l’exercice de ses fonctions”) (s. 495(3) Cr. C.). In light of this wording, I note that the text also supports the interpretation that s. 495(3)(a) and s. 495(3)(b) in fact require that the proceedings be directly aimed at the conduct of the peace officer who made the arrest contrary to the requirements of s. 495(2) Cr. C., which is to say that the court will look at the peace officer’s own actions to determine the liability of that officer, the officer’s employer or any other person who may have proceedings brought against him or her and be held liable for the peace officer’s conduct.\n\nFrom this perspective, the presumption of lawfulness set out in s. 495(3) Cr. C. would apply only to the peace officer’s actions for the purposes of determining the liability of the officer or of a person responsible for the officer. The lawfulness of the peace officer’s conduct (in the context of a civil liability suit or criminal prosecution) would be a very different question than the lawfulness of the arrest under the Criminal Code and the Charter.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-46", + "id": "scc-21317-46", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 90–91", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 100", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", - "current_to": "2016-03-29", + "text": "A plain reading of the words used in s. 495(3)(a) Cr. C. therefore reveals an ambiguity as regards the scope of this provision, in that they can reasonably support two interpretations. However, I am of the view that it is not a “real” ambiguity in the sense discussed in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 29‑30, since the true meaning of s. 495(3)(a) Cr. C. can be ascertained from the context and the purpose underlying it (La Presse inc. v. Quebec, 2023 SCC 22, at paras. 23‑24). The statutory interpretation exercise would in any event be incomplete without looking to the context and purpose of this provision (Wolfe, at para. 32; R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967, at para. 31). Here, the context and purpose of s. 495(3)(a) Cr. C. indicate that the presumption of lawfulness in s. 495(3) Cr. C. applies solely to the conduct of the peace officer who makes the arrest that is considered to be contrary to s. 495(2) Cr. C. In other words, they confirm that a narrow reading of the provision must be adopted. (2) Purpose of Section 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-47", + "id": "scc-21317-47", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 92", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 101–102", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", - "current_to": "2016-03-29", + "text": "I continue my analysis by focusing on the purpose of the provision. It is well settled that a court engaged in statutory interpretation is not required to follow any strict order in examining the text, context and purpose (Piekut, at para. 43; Bell ExpressVu, at para. 31; Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 28). Here, this means that there is no obstacle to considering the purpose next in the analysis, and I will look at the context later. In my view, consideration of the purpose of s. 495(3) Cr. C. is of significant assistance in resolving the ambiguity regarding the scope of the provision, and it helpfully informs the analysis.\n\nAs I noted above, following the release of the Ouimet Report, Parliament enacted the Bail Reform Act, one of the objectives of which was to reduce unnecessary pre‑trial arrest without warrant and detention. This objective is reflected particularly in s. 495(2) Cr. C., whose purpose is — I repeat — to impose binding norms that limit the discretion of peace officers to make an arrest without warrant when certain conditions are met.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-48", + "id": "scc-21317-48", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "para 93", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 103–104", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", - "current_to": "2016-03-29", + "text": "The purpose of s. 495(3) Cr. C., for its part, is complementary to that of s. 495(2) Cr. C. Section 495(3) Cr. C. provides some protection to peace officers in situations where, in good faith, they have made a mistake in judgment by arresting a person contrary to s. 495(2) Cr. C. For example, s. 495(3)(a) Cr. C. prevents a peace officer from being held criminally liable for an offence under the Criminal Code for having breached the requirements of s. 495(2) Cr. C., whereas — again by way of example — s. 495(3)(b) Cr. C. limits the possibility of a peace officer being held liable for such a contravention in a civil suit. This possibility is limited by the wording of s. 495(3)(b), which confirms that the onus is on the person alleging that his or her arrest was contrary to s. 495(2) Cr. C. to prove this fact.\n\nWhile they must be considered with caution, the parliamentary debates surrounding the enactment of s. 495(3) Cr. C. that I reproduced at the outset are of particular importance in this case (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 46; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17). The same is true of the parliamentary debates that I will reproduce below (Reference re Impact Assessment Act, 2023 SCC 23, at para. 62; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 64; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-49", + "id": "scc-21317-49", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 93–95", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 105–106", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", - "current_to": "2016-03-29", + "text": "Indeed, in the absence of an especially instructive legislative history (the provisions in question having hardly been amended since their enactment), the parliamentary debates provide relevant and reliable information concerning the purpose of the former s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) and the intention of Parliament. In addition, they offer helpful guidance for the interpretation of s. 495(2) and s. 495(3) Cr. C. because they reveal how these two provisions interact. I will therefore reproduce the key passages from these debates below to assist in analyzing the purpose of s. 495(3) Cr. C.\n\nI note that, before the Standing Committee on Justice and Legal Affairs, certain members raised concerns about s. 495(2) Cr. C. Given that peace officers, in the execution of their duty, are required to exercise their judgment — which is subject to human error — and to make decisions in real time, some members of the Committee feared that peace officers would not be adequately protected if they made a mistake in judgment, even if it was a mistake made in good faith.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-50", + "id": "scc-21317-50", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 96–99", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 107", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", - "current_to": "2016-03-29", + "text": "Minister Turner responded to those concerns by stating that it was not the intention of the legislation to jeopardize the community by discouraging proper and efficient law enforcement by the police (House of Commons Debates, February 5, 1971, at pp. 3116‑17). Quite the opposite. He later added that s. 495(3) Cr. C. was specifically intended to give peace officers some protection against such mistakes in judgment. In this regard, the Minister clearly stated that if a peace officer made an arrest when it was not necessary, this would be a mistake in judgment that, under s. 495(3)(a) Cr. C., could not ground a guilty verdict in a criminal proceeding (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at pp. 7‑9): The second concern of the police was that because the ordinary policeman was going to be required to make this judgment rather than have the judgment made by a desk sergeant or, eventually, a justice of the peace, then there ought to be some protection for the policeman from criminal or civil liability if, in good faith, he makes the wrong judgment. It is clear, first of all, that there was nothing in the first version of the bill and nothing in this version of the bill to impose criminal liability on a policeman who happened to make the wrong judgment. If he arrests and it later turns out that, in judgment, he did not need to arrest because the public interest would have been served just as well or better by not arresting, then that is a mistake in judgment for which the policeman will not be penalized by criminal liability. He cannot be charged criminally for false arrest. [Emphasis added.]", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-51", + "id": "scc-21317-51", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 100–102", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 108–109", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", - "current_to": "2016-03-29", + "text": "The Minister reconfirmed this interpretation to be given to the phrase “any proceeding under this or any other Act of Parliament” in answer to a question from a member of the Committee (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, February 23, 1971, at p. 9): Mr. Marceau: Yes. In the first version, in clause 436, subparagraph 3, there is express mention of the fact that the . . . peace officer [h]as no criminal liability. This is not mentioned in the new version of the Bill. Mr. Turner (Ottawa‑Carleton): Yes, if you read page 7 of the new version of the Bill[, subsection (3), paragraph (a)]. a) any proceeding under this or any other Act of Parliament and . . . any other Act of Parliament, this includes the Criminal Code. Mr. Marceau: You interpret that as being a protection against any criminal proceedings. Mr. Turner (Ottawa‑Carleton): That is correct.\n\nAn analysis of the general scheme of the Criminal Code reinforces the interpretation that Parliament intended s. 450(3)(a) Cr. C. (1970) (now s. 495(3)(a)) to act as a shield in criminal proceedings relating to a peace officer’s actions in making an arrest. The interaction of this provision with ss. 25 and 247(2) Cr. C. (1970), corresponding to the current ss. 25 and 279(2) Cr. C., is enlightening.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143136-52", + "id": "scc-21317-52", "doc_type": "caselaw", - "act_code": "2016 FCA 93", - "act_short": "Huruglica", - "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", - "marginal_note": "paras 103–106", - "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 110–111", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", - "current_to": "2016-03-29", + "text": "At the time s. 450(3) was enacted, s. 247(2) provided that everyone who, “without lawful authority” (“sans autorisation légitime”), confined, imprisoned or forcibly seized another person was guilty of an indictable offence and liable to imprisonment for a term of five years. By specifying in s. 450(3)(a) that a peace officer acting under s. 450(1) “is deemed to be acting lawfully and in the execution of his duty” (“est censé agir légalement et dans l’exercice de ses fonctions”) for the purposes of any proceedings under the Criminal Code, Parliament ensured that the peace officer’s actions, even if not in compliance with the requirements of s. 450(2), would not be considered to be a forcible seizure of a person “without lawful authority” (“sans autorisation légitime”) within the meaning of s. 247(2).\n\nSimilarly, like the current s. 25 Cr. C., apart from a few differences in form, s. 25 Cr. C. as it read at the time provided that “[e]very one who is required or authorized by law to do anything in the administration or enforcement of the law . . . as a peace officer or public officer . . . is, if he acts on reasonable . . . grounds, justified . . . in using as much force as is necessary for that purpose.” Again, the enactment of s. 450(3) ensured that a peace officer’s use of force remains “authorized by law” despite non‑compliance with s. 495(2).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-1", + "id": "scc-21317-53", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 1–3", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 112", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", - "current_to": "2016-03-29", + "text": "In short, it is clear that Parliament’s intention in enacting s. 495(3)(a) Cr. C. was to protect, first and foremost, the peace officer who made an arrest without warrant contrary to s. 495(2) Cr. C., as well as any person responsible for that officer. This protection was directed in particular at proceedings in which they could be found criminally liable for non‑compliance with s. 495(2) Cr. C. Read as a whole, the debates therefore do not support the argument that the presumption of lawfulness in s. 495(3) Cr. C. applied to the arrest itself, despite what the Crown suggests in this case.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-2", + "id": "scc-21317-54", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 4–6", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 113", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", - "current_to": "2016-03-29", + "text": "The parliamentary debates surrounding s. 495(3)(b) Cr. C. also confirm that s. 495(3) Cr. C. is concerned primarily with the liability of a peace officer and of any person responsible for that officer for failure to comply with the requirements of s. 495(2) Cr. C. Minister Turner confirmed that while s. 495(3)(b) Cr. C. leaves open the possibility of a civil suit against the peace officer who made the arrest contrary to s. 495(2) Cr. C. or a person responsible for that officer, s. 495(3)(b) nonetheless provides some protection against the civil liability that might arise from the conduct of peace officers. Indeed, this provision was drafted so as to impose on the person arrested without warrant the burden of proving that the peace officer believed on reasonable grounds that the public interest could be satisfied without arresting the person and that there was no risk of the person failing to attend court. As Minister Turner explained, “an arrested person . . . must demonstrate that the police did not carry out their new duties properly if he is to recover damages against them in civil proceedings” (House of Commons Debates, February 5, 1971, at p. 3117). The following comments by Minister Turner provide a good understanding of the operation of s. 495(3) as a whole: Subsection (3) . . . says that notwithstanding the failure of a police officer to exercise his discretion properly in accordance with the Bill — you know, we are dealing with human judgments here — if the police officer makes the wrong judgment, he is going to be protected under paragraph (a) from a criminal suit, as he is now, but he is not protected under paragraph (b) from a civil suit.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-3", + "id": "scc-21317-55", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 7–9", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 113–114", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", - "current_to": "2016-03-29", + "text": "All that paragraph (b) says is that he is open to a civil suit if he makes a mistake in judgment but the burden of proof is on the person who feels that he has been wronged by the exercise of that judgment. So the ultimate sanction is a civil suit and . . . I believe that the police of this country, if they accept this Bill as I believe they will be, and I am trying to listen to their objections both at the brotherhood level, and the association level, and the chiefs of police level — I think . . . they will try to live within its sphere. [Emphasis added.] (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14)\n\nIn this regard, the Alberta Court of Appeal was correct in stating that the Minister did not indicate that “the statutory duty imposed by subsection (2) was . . . nullified” because of s. 495(3) and that he did in fact say that one of the consequences of non‑compliance with s. 495(2) was a civil suit (Veen, at para. 50). However, when he explained the mechanism of s. 495(3)(b) Cr. C., the Minister referred at all times to the lawfulness of the peace officer’s conduct, in a context where the civil or criminal liability of the officer or of persons responsible for the officer was sought for actions related to the arrest, and not to the lawfulness of the arrest itself.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-4", + "id": "scc-21317-56", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 10–11", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 115–117", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", - "current_to": "2016-03-29", + "text": "I pause to clarify that there is no basis for saying that the purpose of s. 495(3) Cr. C. is to “discourage persons resisting arrest where they believe they will not be convicted of the offence for which they are being arrested”, as the Saskatchewan Court of Appeal stated in R. v. Munson, 2003 SKCA 28, 172 C.C.C. (3d) 515, at para. 58. That court relied in part on Adams, McKibbon and Fuhr, which I discuss at the very beginning of these reasons, in support of its conclusion (see also Jowett Work, at paras. 33‑34). With respect, such a purpose is not apparent at any point from the parliamentary debates we have considered or from any contextual element relevant to establishing the purpose of the provision. It follows from the foregoing that the purpose underlying the enactment of s. 495(3) Cr. C. is not physical protection (i.e., when the person being arrested resists arrest by force), but rather legal protection (i.e., in the context of a lawsuit or prosecution).\n\nIn this context, it can be inferred from s. 495(3)(a) and s. 495(3)(b) Cr. C., read as a whole, that they share the same purpose, namely to provide peace officers and any person responsible for them with some protection against proceedings in which they face criminal or civil liability for an arrest contrary to s. 495(2). (3) Context\n\nOther contextual elements also support this interpretation. First, I look at the broader context by discussing the legislative landscape at the time s. 495(3) Cr. C. was enacted, and thus before the advent of the Charter. Second, I consider its immediate context, and specifically the relationship between s. 495(2) and s. 495(3) Cr. C. (a) Pre‑Charter Context Surrounding the Enactment of Section 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-5", + "id": "scc-21317-57", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 12–13", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 118–120", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", - "current_to": "2016-03-29", + "text": "The legislative landscape in which Parliament enacted s. 495(3) Cr. C. is an important contextual element. I note that this provision was enacted several years before the Charter came into force. It is therefore necessary to place s. 495(3) Cr. C. in the context of the time in order to interpret it properly. Ultimately, as we will see, the interpretation to be given to this provision was not disturbed by the advent of the Charter.\n\nWhen Parliament enacted s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) through the Bail Reform Act, the possibilities for accused persons to challenge the lawfulness of their arrest and obtain redress in their own criminal and penal proceedings were very limited. This was due in part to Wray.\n\nIn June 1970, shortly before the Bail Reform Act came into force, this Court affirmed in Wray that a court did not have the discretion to exclude admissible evidence simply because its admission would bring the administration of justice into disrepute, for example because the evidence had allegedly been obtained following an unlawful arrest (p. 287). A court did of course have the power to exclude evidence obtained following an unlawful arrest, but, as Martland J. explained, the threshold was very high: “It is only the allowance of evidence gravely prejudicial to the accused, the admissibility of which is tenuous, and whose probative force in relation to the main issue before the court is trifling, which can be said to operate unfairly” (p. 293). The state of the law as set out in Wray seems to have remain unchanged until the advent of the Charter in 1982 (Coughlan, at pp. 429‑30).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-6", + "id": "scc-21317-58", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 14–15", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 121", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", - "current_to": "2016-03-29", + "text": "Thus, at the time the first iteration of s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) was enacted, Parliament could not have imagined that, years later, accused persons would be able, in their own criminal trial, to challenge infringements of their constitutional rights — such as the right not to be arbitrarily detained — by asserting the unlawfulness of their arrest and seeking the exclusion of the evidence obtained in violation of those rights. The Charter had not yet been enacted and, even more to the point, this Court had obviously not recognized that an unlawful arrest could amount to an arbitrary arrest. Nor could Parliament have anticipated that, where a Charter infringement was established, accused persons would be able to seek other “appropriate and just” remedies under s. 24(1) of the Charter in their criminal trial, such as a sentence reduction or a stay of proceedings. It is accordingly very difficult, if not impossible, to ascribe to Parliament any intention, in enacting the former s. 450(3) Cr. C. (1970), of insulating an arrest contrary to s. 495(2) Cr. C. from scrutiny based on the unlawfulness of the arrest at the time it enacted the provisions in question. I therefore agree with the respondent that the wording of the former s. 450(3) Cr. C. (1970) (now s. 495(3) Cr. C.) must be interpreted in light of this reality.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-7", + "id": "scc-21317-59", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 16", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 122–123", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", - "current_to": "2016-03-29", + "text": "Very recently, in Telus, I endorsed the theoretical framework outlined by my colleague Moreau J. regarding the manner in which legislation should be interpreted in response to changing circumstances (para. 155). It is understood that the modern approach allows courts “[to] appl[y] statutes to new or evolving circumstances” (para. 33; see also Interpretation Act, s. 10). It is also possible for Parliament to use “broad or open‑textured language to cover circumstances that are neither in existence nor in [its] contemplation” (Telus, at para. 33, citing R. v. D.L.W., 2016 SCC 22, [2016] 1 S.C.R. 402, at para. 61, Perka, at p. 265, and Côté and Devinat, at para. 285), as might be the case with the words “any proceedings” (“toutes procédures”) used in s. 495(3) Cr. C.\n\nHowever, determining whether a provision is capable of applying to new circumstances is an interpretive question, and it must be answered by reading the text of the statute in its context and in a manner consistent with the legislature’s purpose (Telus, at para 36). Thus, even where the text of the provision is drafted in general terms suggesting that it could apply to new circumstances, courts must avoid giving it a meaning that would overreach the provision’s purpose. Otherwise, courts risk exceeding their institutional role by intruding into questions that can be better addressed by legislatures (Sullivan, at § 6.01[3]).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-8", + "id": "scc-21317-60", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 17–18", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 124", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", - "current_to": "2016-03-29", + "text": "Moreover, a provision that uses broad and general language can be read more narrowly so that its interpretation does not overreach its purpose. R. v. Kuldip, [1990] 3 S.C.R. 618, provides an example of this. In that case, this Court was called upon to interpret the words of s. 5(2) of the Canada Evidence Act, R.S.C. 1985, c. C‑5. Relying on wording that was broader and more general, the accused proposed an interpretation of the provision that would overreach its purpose (see Sullivan, at § 9.04[4]: “. . . the guarantee sought by the accused (protection against impeachment of credibility) was not rationally related to the purpose of the provision (protection against self‑incrimination)” (emphasis added)). This Court rejected the accused’s arguments, thereby declining to adopt an interpretation of the provision that, while consistent with the grammatical and ordinary meaning of the words, “would extend beyond the purpose” of the provision (Kuldip, at p. 639). Rather, the Court found that “the protection offered by s. 5(2) . . . must be interpreted in consideration of the express purpose” — without going beyond it (p. 639).", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-9", + "id": "scc-21317-61", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 19", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 125–127", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", - "current_to": "2016-03-29", + "text": "In light of the foregoing, I find it difficult to draw any definitive conclusions from the broad and general wording of s. 495(3)(a) Cr. C., especially since the consequences of such drafting were hard to foresee at the time the predecessors to s. 495(3)(a) and (b) were enacted. The mere fact that the text is framed in general terms is not a basis for concluding that Parliament necessarily intended to include [translation] “all criminal proceedings” (“toutes les procédures criminelles”) imaginable within the scope of s. 495(3)(a) (A.F., at para. 71). The same could also be said of the interpretation to be given to the expression “any other proceedings” in s. 495(3)(b) Cr. C.\n\nI therefore propose, following the example of Kuldip, to adopt an interpretation of s. 495(3)(a) Cr. C. that is consistent with but does not overreach the purpose of this provision, in other words, that applies only to proceedings under the Criminal Code or any other Act of Parliament in which a peace officer or any person responsible for that officer is actually facing liability for a breach of the requirements of s. 495(2) Cr. C. (b) The Purpose of Section 495(2) Cr. C. Is Consistent With an Interpretation of Section 495(3) Cr. C. Limited to the Liability of the Peace Officer and of Any Person Responsible for That Officer\n\nThe final contextual element that I propose to examine in support of my analysis is the relationship between s. 495(2) and s. 495(3) Cr. C. Given that s. 495(3) Cr. C. refers directly to s. 495(2) Cr. C., it is necessary to consider it.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-10", + "id": "scc-21317-62", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 20", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 128–130", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", - "current_to": "2016-03-29", + "text": "As I have already said, the structure of s. 495 Cr. C. confirms that s. 495(2) must be interpreted as a binding limitation, which narrows the scope of the discretion conferred by s. 495(1). In my view, this same structure also confirms that s. 495(3) Cr. C. must be viewed as providing some protection to peace officers, their employer or any other person who might be held liable for a peace officer’s failure to comply with s. 495(2) Cr. C.\n\nSection 495(3) Cr. C. is under the heading “Consequences of arrest without warrant” (“Conséquences de l’arrestation sans mandat”). While this marginal note is not part of the content of the provision (Interpretation Act, s. 14), it may suggest that s. 495(3) specifically concerns the “Consequences” (“Conséquences”) to be suffered by a peace officer who has contravened s. 495 (2) Cr. C. and by the officer’s principal, among others.\n\nFocusing on the words “a peace officer . . . deemed to be acting lawfully and in the execution of his duty for the purposes of” (“l’agent de la paix . . . censé agir légalement et dans l’exercice de ses fonctions aux fins”) makes it clear that s. 495(3) Cr. C. has the effect of creating a presumption to the effect that, in a proceeding relating to the conduct of a peace officer who breached the requirements of s. 495(2) Cr. C., the peace officer is presumed to have acted lawfully as long as he or she acted in compliance with s. 495(1) Cr. C., regardless of his or her failure to comply with the requirements of s. 495(2) Cr. C. On the other hand, s. 495 Cr. C. does not create any presumption with respect to the lawfulness of the arrest without warrant itself. The lawfulness of the arrest can always be challenged, even in a criminal proceeding like the trial of the respondent in this case.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-11", + "id": "scc-21317-63", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 21–22", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 131", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", - "current_to": "2016-03-29", + "text": "Such an interpretation is in keeping with the binding nature of s. 495(2) Cr. C. Indeed, to interpret s. 495(3) Cr. C. as having the effect of shielding arrests contrary to s. 495(2) Cr. C. from any finding of unlawfulness would undercut the binding nature of this provision. It would also run directly counter to Parliament’s objective in enacting the Bail Reform Act, that is, to reduce unnecessary arrests without warrant. In other words, the more broadly s. 495(3)(a) Cr. C. is interpreted, the more the normative import of s. 495(2) Cr. C. is eroded, thereby jeopardizing the achievement of the objective sought by Parliament. It is therefore essential to avoid adopting such an interpretation and to opt instead for a proper balancing consistent with the text, context and purpose of s. 495(3)(a) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-12", + "id": "scc-21317-64", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 23", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 132", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", - "current_to": "2016-03-29", + "text": "In the same spirit, I cannot agree with the way in which several appellate courts have interpreted the interaction between s. 495(2) and s. 495(3) to establish the scope of s. 495(3)(a) Cr. C. (see, among others, Veen (C.A.), at para. 57). For example, the British Columbia Court of Appeal wrote the following in Jowett Work about the relationship between s. 495(2) and s. 495(3) Cr. C.: . . . s. 495(3)(a) was intended to ensure that the requirements of s. 495(1) remained the focus of the power to arrest without warrant, whereas s. 495(3)(b) was intended to permit the public interest considerations to be challenged in proceedings in the civil or provincial regulatory context. Therefore, it is my view that an arrest that is lawful under s. 495(1) cannot be rendered unlawful in a criminal proceeding due only to a peace officer’s failure to properly consider the public interest in an arrest as set out in s. 495(2), and the trial judge erred in concluding that the arrest of the respondent was unlawful because the requirements of s. 495(2) had not been satisfied. [paras. 38‑39]", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-13", + "id": "scc-21317-65", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 24–25", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "para 133", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", - "current_to": "2016-03-29", + "text": "With respect, I believe that such an interpretation fails to consider the binding nature of s. 495(2) Cr. C. It also takes away a large part of the provision’s practical utility in reducing unnecessary arrests, which was Parliament’s objective when enacting it. On this point, I wholly agree with the sentiment expressed by Kopstein Prov. Ct. J. in R. v. Prince (1981), 61 C.C.C. (2d) 73 (Man.), when he stated the following: . . . it would seem a strange phenomenon for Parliament to have taken the initiative to enact s. 450(2) which restricts the power of arrest without a warrant for those offences referred to in s. 450(2), and then immediately thereafter by s‑s. (3) to nullify any legal or practical effect which might arise out of the operation of s‑s (2). [p. 80]", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-14", + "id": "scc-21317-66", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 26", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 134–135", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", - "current_to": "2016-03-29", + "text": "It is true, as noted by the attorneys general of Ontario and Alberta, that the combined operation of s. 495(2) and s. 495(3)(b) Cr. C. (civil action in damages) also serves to change peace officers’ conduct to some extent by encouraging them to comply with the requirements of s. 495(2) Cr. C., on pain of being sued civilly (s. 495(3)(b) Cr. C.) for non‑compliance with s. 495(2) Cr. C. The experience of provinces like Ontario and Alberta shows that complainants have been able to allege the unlawfulness of an arrest in a civil proceeding and to claim damages as a remedy. The Attorney General of Ontario cites, for example, Collins, in which the complainant alleged that his arrest was unlawful because it was contrary to s. 495(2) Cr. C. and that his right guaranteed by s. 9 of the Charter had been infringed. This is in line with Minister Turner’s statement that “the ultimate sanction is a civil suit” (Minutes of Proceedings and Evidence of the Standing Committee on Justice and Legal Affairs, March 4, 1971, at p. 14; see also pp. 10‑11). In this sense, I concede that it would be going too far to say that the interpretation suggested by the Crown would completely deprive s. 495(2) Cr. C. of any useful effect.\n\nThat being the case, it must be recognized that an interpretation whereby an arrest contrary to s. 495(2) Cr. C. would still be considered lawful in criminal and penal proceedings, such as the trial of the respondent in this case, would greatly diminish the deterrent effect of this imperative, such that Parliament’s objective would be not only largely exceeded but also, and above all, compromised. This interpretation must therefore be rejected. (4) Conclusion on the Interpretation of Section 495(3) Cr. C.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-15", + "id": "scc-21317-67", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 136–137", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", - "current_to": "2016-03-29", + "text": "In conclusion, s. 495(3) Cr. C. is intended to govern the liability of peace officers for failure to comply with the requirements of s. 495(2) Cr. C. Since peace officers are called upon to exercise their judgment quickly to make an arrest without warrant in circumstances that are often unpredictable, it was necessary for Parliament to establish some protection in relation to the then new limitation on their discretion introduced by s. 495(2) Cr. C.\n\nFrom this perspective, s. 495(3)(a) Cr. C. provides peace officers or any person responsible for them with greater protection when proceedings are brought against them under the Criminal Code or any other Act of Parliament by creating a presumption that peace officers are deemed to have acted lawfully and in the execution of their duty. As for s. 495(3)(b) Cr. C., it sets out the parameters for a civil suit that may be brought by a person who believes that his or her arrest was contrary to s. 495(2) Cr. C. For the purposes of such a lawsuit, the peace officer is presumed to have acted lawfully and in the execution of his or her duty unless the person arrested without warrant successfully demonstrates that the arrest was contrary to the requirements established by s. 495(2) Cr. C. Section 495(3)(b) therefore ensures that, in a civil suit against the peace officer or any person responsible for that officer for a contravention of s. 495(2), the plaintiff bears the burden of proof.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-16", + "id": "scc-21317-68", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 27", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 138–140", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", - "current_to": "2016-03-29", + "text": "I would add that such an interpretation is consistent with the Criminal Code’s special nature, which requires that it be read having regard “to liberty interests” (R. v. McIntosh, [1995] 1 S.C.R. 686, at para. 39). Along the same lines, I noted in Kosoian v. Société de transport de Montréal, 2019 SCC 59, [2019] 4 S.C.R. 335, that “[i]n a free and democratic society, police officers may interfere with the exercise of individual freedoms only to the extent provided for by law” (para. 6). Of course, this taking into account of individual freedoms must not compromise other fundamental criminal law considerations, which must be carefully balanced with these freedoms — including public safety and the public interest in ensuring that peace officers can do their work effectively and expeditiously (see CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743, at para. 20).\n\nThat being the case, as we have seen, Parliament’s intention in enacting s. 450(2) and (3) Cr. C. (1970) (now s. 495(2) and (3) Cr. C.) was precisely to balance these various considerations. I therefore propose to give full effect to the balancing done by our elected representatives. In this context, preference should be given to the interpretation that best reflects this desired balance, without overstepping it. G. Application to the Facts\n\nIn light of the above interpretation, I would dismiss the appeal and uphold the order that the respondent be given a new trial. However, my reasons for reaching this result differ from those of the Quebec Court of Appeal. With great respect, let me make myself clear.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-17", + "id": "scc-21317-69", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 28–30", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 141–142", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", - "current_to": "2016-03-29", + "text": "Section 495(3) Cr. C. creates a presumption of lawfulness applicable to the conduct of a peace officer who has made an arrest without warrant that does not meet the requirements of s. 495(2) Cr. C. Section 495(3)(b) provides, however, for the possibility of rebutting this presumption in a proceeding not brought under the Criminal Code or any other Act of Parliament, where the person alleging the unlawfulness of the peace officer’s conduct establishes that the officer did not comply with the requirements of s. 495(2) Cr. C. The Court of Appeal’s error was in finding that the possibility of rebutting the presumption of lawfulness applied in a proceeding under the Criminal Code or another Act of Parliament contemplated by s. 495(3)(a), which distorted its entire interpretation.\n\nThus, by stating that in this case s. 495(3) Cr. C. guaranteed the respondent “the opportunity to challenge the lawfulness of the arrest upon allegation and proof” (C.A. reasons, at para. 18), the Court of Appeal erred, because in the context of determining the criminal liability of the respondent in this case — and not that of the peace officer — there was no presumption of lawfulness that applied.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-18", + "id": "scc-21317-70", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 31–32", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 143–145", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", - "current_to": "2016-03-29", + "text": "On this point, I agree with the analysis of the Alberta Court of Appeal in Veen to the effect that “sections 495(3)(a) and (b) were intended to operate differently and in different contexts, with subsection (a) applying to criminal matters and (b) applying to civil matters” (para. 59). It follows that the phrase “unless in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection (2)” in s. 495(3)(b) Cr. C., as the very structure of subs. (3) clearly indicates, applies only to para. (b), and its application cannot be extended to the entire subsection. There is no justification for reading into para. (a), as the Court of Appeal did, a phrase that is expressly confined to para. (b).\n\nIn summary, since the criminal proceeding brought against the respondent — specifically a charge for sexual assault — does not fall within either of the paragraphs of s. 495(3), the Quebec Court of Appeal could not base its analysis on this provision. That being said, I am of the view that this error by the Court of Appeal is not determinative. In this case, it is rather the trial judge’s refusal to hold the voir dire requested by the respondent that constitutes a reviewable error.\n\nSection 495(2) Cr. C. is mandatory and binding. Failure to comply with it may make an arrest without warrant unlawful, even if the arrest meets the requirements of s. 495(1) Cr. C. An arrest that is unlawful may, by that very fact, be characterized as arbitrary within the meaning of s. 9 of the Charter and thus provide a basis for constitutional remedies under s. 24 of the Charter.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-19", + "id": "scc-21317-71", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2025 SCC 43", + "act_short": "Carignan", + "act_name": "R. v. Carignan", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 33", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", + "citation": "R. v. Carignan, 2025 SCC 43", + "marginal_note": "paras 146–147", + "heading": "Powers of arrest without warrant under Criminal Code s. 495; an arrest that contravenes the s. 495(2) limits can ground a breach of the Charter s. 9 right against arbitrary arrest, despite s. 495(3)", + "part": "Supreme Court of Canada", "division": "", - "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", - "current_to": "2016-03-29", + "text": "This case does not involve any of the scenarios in which s. 495(3) applies, because the criminal or civil liability of the peace officer who arrested the respondent without warrant or of any person responsible for that officer is not in issue. The presumption of lawfulness created by s. 495(3) Cr. C. with respect to the conduct of the peace officer who made the arrest therefore does not apply, and the trial court had to hold a voir dire to determine the lawfulness of that arrest. The refusal to conduct that hearing is a reviewable error that warrants a new trial. V. Conclusion\n\nFor these reasons, I would dismiss the appeal and uphold the order for a new trial made by the Court of Appeal. Appeal dismissed.", + "current_to": "2025-12-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/21317/index.do" }, { - "id": "fca-143152-20", + "id": "fca-143136-1", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 34–35", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 1–4", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", + "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-21", + "id": "fca-143136-2", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 36–37", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 5–6", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", + "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-22", + "id": "fca-143136-3", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 7–9", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", + "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-23", + "id": "fca-143136-4", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 38", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 10–12", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", + "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-24", + "id": "fca-143136-5", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 39–40", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 13–15", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", + "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-25", + "id": "fca-143136-6", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 41", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 16–18", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", + "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-26", + "id": "fca-143136-7", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 42", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 19–20", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", + "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-27", + "id": "fca-143136-8", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 43", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 21–22", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", + "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-28", + "id": "fca-143136-9", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 44", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 23–24", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", + "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-29", + "id": "fca-143136-10", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 45–47", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", + "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-30", + "id": "fca-143136-11", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 48–49", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", + "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur sécurité; (h) to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals. h) de promouvoir, à l’échelle internationale, la sécurité et la justice par l’interdiction du territoire aux personnes et demandeurs d’asile qui sont de grands criminels ou constituent un danger pour la sécurité.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-31", + "id": "fca-143136-12", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 50", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", + "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-32", + "id": "fca-143136-13", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 51–52", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", + "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l���objet de la désignation visée au paragraphe 109.1(1) à la date de la décision; (e) a decision of the Refugee Protection Division allowing or rejecting an application by the Minister for a determination that refugee protection has ceased; e) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant la perte de l’asile; (f) a decision of the Refugee Protection Division", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-33", + "id": "fca-143136-14", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 53", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", + "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-34", + "id": "fca-143136-15", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 54", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", + "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-35", + "id": "fca-143136-16", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 55", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", + "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-36", + "id": "fca-143136-17", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", + "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-37", + "id": "fca-143136-18", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 56", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", + "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-38", + "id": "fca-143136-19", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 57", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 25–27", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", + "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-39", + "id": "fca-143136-20", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 58–59", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", - "part": "Federal Court of Appeal", - "division": "", - "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 28–29", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-40", + "id": "fca-143136-21", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 60", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 30", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", + "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-41", + "id": "fca-143136-22", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 61", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 31–32", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", + "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-42", + "id": "fca-143136-23", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 61–62", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 33–36", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", + "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-43", + "id": "fca-143136-24", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 63", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 37–38", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", + "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-44", + "id": "fca-143136-25", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 64–65", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 39–40", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", + "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-45", + "id": "fca-143136-26", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 66", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 41–43", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", + "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-46", + "id": "fca-143136-27", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 67", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 44–45", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", + "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-47", + "id": "fca-143136-28", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 68–70", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 46–48", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", + "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-48", + "id": "fca-143136-29", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "paras 71–72", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 49–52", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", + "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-49", + "id": "fca-143136-30", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 73", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 53–54", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", + "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-143152-50", + "id": "fca-143136-31", "doc_type": "caselaw", - "act_code": "2016 FCA 96", - "act_short": "Singh (new evidence)", - "act_name": "Canada (Citizenship and Immigration) v. Singh", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", - "marginal_note": "para 74", - "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 55–56", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", + "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-1", + "id": "fca-143136-32", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 1–4", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 57–59", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", - "current_to": "2012-12-07", + "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-2", + "id": "fca-143136-33", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 5–8", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 60–61", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", - "current_to": "2012-12-07", + "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-3", + "id": "fca-143136-34", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 9–10", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 62–64", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", - "current_to": "2012-12-07", + "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-4", + "id": "fca-143136-35", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 11–13", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 65–66", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", - "current_to": "2012-12-07", + "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-5", + "id": "fca-143136-36", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 14–16", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 67–68", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", - "current_to": "2012-12-07", + "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-6", + "id": "fca-143136-37", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 17", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 69–71", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", - "current_to": "2012-12-07", + "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-7", + "id": "fca-143136-38", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 18", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 72–74", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", - "current_to": "2012-12-07", + "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-8", + "id": "fca-143136-39", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 18–20", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 75–76", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : […] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", - "current_to": "2012-12-07", + "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-9", + "id": "fca-143136-40", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 77–79", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", - "current_to": "2012-12-07", + "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-10", + "id": "fca-143136-41", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 21", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 80–83", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", - "current_to": "2012-12-07", + "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-11", + "id": "fca-143136-42", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 21–23", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 84–86", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", - "current_to": "2012-12-07", + "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-12", + "id": "fca-143136-43", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 24–26", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 87", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", - "current_to": "2012-12-07", + "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-13", + "id": "fca-143136-44", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 27–29", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 88", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", - "current_to": "2012-12-07", + "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-14", + "id": "fca-143136-45", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 30–32", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 88–89", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", - "current_to": "2012-12-07", + "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-15", + "id": "fca-143136-46", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 33–35", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 90–91", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", - "current_to": "2012-12-07", + "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-16", + "id": "fca-143136-47", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 36–38", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 92", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", - "current_to": "2012-12-07", + "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-17", + "id": "fca-143136-48", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 39–40", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 93", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", - "current_to": "2012-12-07", + "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-18", + "id": "fca-143136-49", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 41–42", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 93–95", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", - "current_to": "2012-12-07", + "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-19", + "id": "fca-143136-50", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 43–45", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 96–99", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", - "current_to": "2012-12-07", + "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-20", + "id": "fca-143136-51", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 46–48", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 100–102", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", - "current_to": "2012-12-07", + "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-21", + "id": "fca-143136-52", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 49–51", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 103–106", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", "part": "Federal Court of Appeal", "division": "", - "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", - "current_to": "2012-12-07", + "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" }, { - "id": "fca-37663-22", + "id": "fca-143152-1", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 52–55", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 1–3", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", - "current_to": "2012-12-07", + "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-23", + "id": "fca-143152-2", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 56–58", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 4–6", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", - "current_to": "2012-12-07", + "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-24", + "id": "fca-143152-3", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 59", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 7–9", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", - "current_to": "2012-12-07", + "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-25", + "id": "fca-143152-4", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "para 60", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 10–11", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", - "current_to": "2012-12-07", + "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-26", + "id": "fca-143152-5", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 61–63", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 12–13", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", - "current_to": "2012-12-07", + "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-27", + "id": "fca-143152-6", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 64–66", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 14–15", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", - "current_to": "2012-12-07", + "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-28", + "id": "fca-143152-7", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 67–69", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 16", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", - "current_to": "2012-12-07", + "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-29", + "id": "fca-143152-8", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 70–73", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 17–18", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", - "current_to": "2012-12-07", + "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-30", + "id": "fca-143152-9", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 74–77", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 19", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", - "current_to": "2012-12-07", + "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-37663-31", + "id": "fca-143152-10", "doc_type": "caselaw", - "act_code": "2012 FCA 324", - "act_short": "Hernandez Febles", - "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", - "marginal_note": "paras 78–81", - "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 20", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2012-12-07", + "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-1", + "id": "fca-143152-11", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 1–2", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 21–22", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", - "current_to": "2008-12-17", + "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-2", + "id": "fca-143152-12", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 3–5", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 23", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", - "current_to": "2008-12-17", + "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-3", + "id": "fca-143152-13", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 24–25", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", - "current_to": "2008-12-17", + "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-4", + "id": "fca-143152-14", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 26", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", - "current_to": "2008-12-17", + "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-5", + "id": "fca-143152-15", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", - "current_to": "2008-12-17", + "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-6", + "id": "fca-143152-16", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", - "current_to": "2008-12-17", + "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-7", + "id": "fca-143152-17", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 28–30", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", - "current_to": "2008-12-17", + "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-8", + "id": "fca-143152-18", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 31–32", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", - "current_to": "2008-12-17", + "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-9", + "id": "fca-143152-19", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 33", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", - "current_to": "2008-12-17", + "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-10", + "id": "fca-143152-20", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 34–35", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", - "current_to": "2008-12-17", - "last_amended": "", + "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", + "current_to": "2016-03-29", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-11", + "id": "fca-143152-21", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 36–37", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", - "current_to": "2008-12-17", + "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-12", + "id": "fca-143152-22", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 6", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", - "current_to": "2008-12-17", + "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-13", + "id": "fca-143152-23", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 7–12", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", - "current_to": "2008-12-17", + "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-14", + "id": "fca-143152-24", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 13–16", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 39–40", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", - "current_to": "2008-12-17", + "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-15", + "id": "fca-143152-25", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 17–18", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 41", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", - "current_to": "2008-12-17", + "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-16", + "id": "fca-143152-26", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 19–20", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 42", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", - "current_to": "2008-12-17", + "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-17", + "id": "fca-143152-27", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 21", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 43", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", - "current_to": "2008-12-17", + "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-18", + "id": "fca-143152-28", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 21–24", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 44", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", - "current_to": "2008-12-17", + "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-19", + "id": "fca-143152-29", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 25–27", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 45–47", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", - "current_to": "2008-12-17", + "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-20", + "id": "fca-143152-30", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 28", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 48–49", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", - "current_to": "2008-12-17", + "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-21", + "id": "fca-143152-31", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 28–29", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 50", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", - "current_to": "2008-12-17", + "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-22", + "id": "fca-143152-32", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 30–34", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 51–52", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", - "current_to": "2008-12-17", + "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-23", + "id": "fca-143152-33", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 35–37", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 53", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", - "current_to": "2008-12-17", + "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-24", + "id": "fca-143152-34", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 38–39", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 54", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", - "current_to": "2008-12-17", + "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-25", + "id": "fca-143152-35", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 40–41", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 55", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", - "current_to": "2008-12-17", + "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-26", + "id": "fca-143152-36", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 42–43", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", - "current_to": "2008-12-17", + "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-27", + "id": "fca-143152-37", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 44–45", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", - "current_to": "2008-12-17", + "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-28", + "id": "fca-143152-38", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 46–48", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 57", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", - "current_to": "2008-12-17", + "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-29", + "id": "fca-143152-39", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 49–50", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 58–59", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", - "current_to": "2008-12-17", + "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-30", + "id": "fca-143152-40", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "para 51", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 60", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", - "current_to": "2008-12-17", + "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-31", + "id": "fca-143152-41", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 52–53", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 61", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", - "current_to": "2008-12-17", + "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-32", + "id": "fca-143152-42", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 54–55", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 61–62", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", - "current_to": "2008-12-17", + "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-36253-33", + "id": "fca-143152-43", "doc_type": "caselaw", - "act_code": "2008 FCA 404", - "act_short": "Jayasekara", - "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", - "marginal_note": "paras 56–59", - "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 63", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2008-12-17", + "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-1", + "id": "fca-143152-44", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 1–3", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 64–65", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", - "current_to": "2007-12-06", + "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-2", + "id": "fca-143152-45", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 4", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 66", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", - "current_to": "2007-12-06", + "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-3", + "id": "fca-143152-46", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 67", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d��un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", - "current_to": "2007-12-06", + "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-4", + "id": "fca-143152-47", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 5", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 68–70", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", - "current_to": "2007-12-06", + "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-5", + "id": "fca-143152-48", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 5–6", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 71–72", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", - "current_to": "2007-12-06", + "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-6", + "id": "fca-143152-49", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 7–9", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 73", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", - "current_to": "2007-12-06", + "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-7", + "id": "fca-143152-50", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 10–11", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 74", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", "part": "Federal Court of Appeal", "division": "", - "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", - "current_to": "2007-12-06", + "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL", + "current_to": "2016-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" }, { - "id": "fca-35786-8", + "id": "fca-37663-1", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 12", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 1–4", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", - "current_to": "2007-12-06", + "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-35786-9", + "id": "fca-37663-2", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "para 13", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 5–8", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", - "current_to": "2007-12-06", + "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-35786-10", + "id": "fca-37663-3", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 13–16", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 9–10", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", - "current_to": "2007-12-06", + "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-35786-11", + "id": "fca-37663-4", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 17–19", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 11–13", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", - "current_to": "2007-12-06", + "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-35786-12", + "id": "fca-37663-5", "doc_type": "caselaw", - "act_code": "2007 FCA 385", - "act_short": "Raza", - "act_name": "Raza v. Canada (Citizenship and Immigration)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", - "marginal_note": "paras 20–21", - "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 14–16", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2007-12-06", + "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-1", + "id": "fca-37663-6", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 1–4", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 17", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", - "current_to": "2014-11-07", + "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-2", + "id": "fca-37663-7", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 5–7", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 18", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", - "current_to": "2014-11-07", + "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-3", + "id": "fca-37663-8", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 8–10", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 18–20", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", - "current_to": "2014-11-07", + "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : […] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-4", + "id": "fca-37663-9", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 11–13", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", - "current_to": "2014-11-07", + "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-5", + "id": "fca-37663-10", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 14–15", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", - "current_to": "2014-11-07", + "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-6", + "id": "fca-37663-11", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 16–18", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 21–23", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", - "current_to": "2014-11-07", + "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-7", + "id": "fca-37663-12", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 19–20", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 24–26", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", - "current_to": "2014-11-07", + "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-8", + "id": "fca-37663-13", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 21–23", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 27–29", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", - "current_to": "2014-11-07", + "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-9", + "id": "fca-37663-14", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 30–32", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", - "current_to": "2014-11-07", + "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-10", + "id": "fca-37663-15", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 27–29", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 33–35", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", - "current_to": "2014-11-07", + "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-11", + "id": "fca-37663-16", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 30–31", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 36–38", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", - "current_to": "2014-11-07", + "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-12", + "id": "fca-37663-17", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 32", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 39–40", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", - "current_to": "2014-11-07", + "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-13", + "id": "fca-37663-18", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 33–34", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 41–42", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", - "current_to": "2014-11-07", + "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-14", + "id": "fca-37663-19", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 43–45", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet : (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada; (f) complies with international human rights instruments to which Canada is signatory. f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", - "current_to": "2014-11-07", + "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-15", + "id": "fca-37663-20", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 35", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 46–48", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", - "current_to": "2014-11-07", + "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-16", + "id": "fca-37663-21", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 35–39", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 49–51", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", - "current_to": "2014-11-07", - "last_amended": "", + "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", + "current_to": "2012-12-07", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-17", + "id": "fca-37663-22", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 40–42", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 52–55", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", + "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-18", + "id": "fca-37663-23", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 43–47", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 56–58", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", - "current_to": "2014-11-07", + "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-19", + "id": "fca-37663-24", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 48–50", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 59", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", - "current_to": "2014-11-07", + "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-20", + "id": "fca-37663-25", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 51–53", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 60", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", - "current_to": "2014-11-07", + "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-21", + "id": "fca-37663-26", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 54–56", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 61–63", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", - "current_to": "2014-11-07", + "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-22", + "id": "fca-37663-27", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 57–60", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 64–66", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", - "current_to": "2014-11-07", + "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-23", + "id": "fca-37663-28", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 61–62", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 67–69", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", - "current_to": "2014-11-07", + "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-24", + "id": "fca-37663-29", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 63–64", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 70–73", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", - "current_to": "2014-11-07", + "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-25", + "id": "fca-37663-30", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 65–67", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 74–77", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", - "current_to": "2014-11-07", + "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-26", + "id": "fca-37663-31", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 68–71", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 78–81", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", "part": "Federal Court of Appeal", "division": "", - "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", - "current_to": "2014-11-07", + "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.\n\nSubject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2012-12-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" }, { - "id": "fca-99694-27", + "id": "fca-36253-1", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 72–73", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 1–2", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", - "current_to": "2014-11-07", + "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-28", + "id": "fca-36253-2", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 74–77", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 3–5", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", - "current_to": "2014-11-07", + "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-29", + "id": "fca-36253-3", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 78–81", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", - "current_to": "2014-11-07", + "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-30", + "id": "fca-36253-4", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 82–85", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", - "current_to": "2014-11-07", + "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-31", + "id": "fca-36253-5", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 86–87", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", - "current_to": "2014-11-07", + "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-32", + "id": "fca-36253-6", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 88–91", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", - "current_to": "2014-11-07", + "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-33", + "id": "fca-36253-7", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 92–96", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", - "current_to": "2014-11-07", + "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-34", + "id": "fca-36253-8", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 97–100", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", - "current_to": "2014-11-07", + "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-35", + "id": "fca-36253-9", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 101–105", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", - "current_to": "2014-11-07", + "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-36", + "id": "fca-36253-10", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "para 106", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", - "current_to": "2014-11-07", + "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-99694-37", + "id": "fca-36253-11", "doc_type": "caselaw", - "act_code": "2014 FCA 262", - "act_short": "Najafi", - "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", - "marginal_note": "paras 107–109", - "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2014-11-07", + "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-1", + "id": "fca-36253-12", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 1–5", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", - "current_to": "2015-04-07", + "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-2", + "id": "fca-36253-13", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 6–10", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 7–12", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", - "current_to": "2015-04-07", + "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-3", + "id": "fca-36253-14", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 11–15", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 13–16", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", - "current_to": "2015-04-07", + "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-4", + "id": "fca-36253-15", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 16–19", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 17–18", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", - "current_to": "2015-04-07", + "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-5", + "id": "fca-36253-16", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 20–23", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 19–20", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", - "current_to": "2015-04-07", + "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-6", + "id": "fca-36253-17", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 24–26", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 21", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", - "current_to": "2015-04-07", + "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-7", + "id": "fca-36253-18", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 27–31", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 21–24", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", - "current_to": "2015-04-07", + "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-8", + "id": "fca-36253-19", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 25–27", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", - "current_to": "2015-04-07", + "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-9", + "id": "fca-36253-20", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "para 32", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 28", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", - "current_to": "2015-04-07", + "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-10", + "id": "fca-36253-21", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 32–33", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 28–29", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", - "current_to": "2015-04-07", + "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-11", + "id": "fca-36253-22", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 34–36", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 30–34", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", - "current_to": "2015-04-07", + "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-108889-12", + "id": "fca-36253-23", "doc_type": "caselaw", - "act_code": "2015 FCA 86", - "act_short": "Kanagendren", - "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", - "marginal_note": "paras 37–38", - "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 35–37", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", - "current_to": "2015-04-07", + "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-1", + "id": "fca-36253-24", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 1–5", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 38–39", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", - "current_to": "2006-10-12", + "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-2", + "id": "fca-36253-25", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 6–8", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 40–41", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", - "current_to": "2006-10-12", + "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-3", + "id": "fca-36253-26", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 9–12", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 42–43", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", - "current_to": "2006-10-12", + "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-4", + "id": "fca-36253-27", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 44–45", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", - "current_to": "2006-10-12", + "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-5", + "id": "fca-36253-28", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 13", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 46–48", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", - "current_to": "2006-10-12", + "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-6", + "id": "fca-36253-29", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 13–16", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 49–50", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", - "current_to": "2006-10-12", + "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-7", + "id": "fca-36253-30", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 17", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 51", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", - "current_to": "2006-10-12", + "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-8", + "id": "fca-36253-31", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 18–20", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 52–53", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", - "current_to": "2006-10-12", + "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-9", + "id": "fca-36253-32", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 21–22", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 54–55", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", - "current_to": "2006-10-12", + "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-10", + "id": "fca-36253-33", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 23–24", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 56–59", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", "part": "Federal Court of Appeal", "division": "", - "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", - "current_to": "2006-10-12", + "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2008-12-17", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" }, { - "id": "fca-35313-11", + "id": "fca-35786-1", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 25", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 1–3", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", - "current_to": "2006-10-12", + "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-12", + "id": "fca-35786-2", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 26–27", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 4", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", - "current_to": "2006-10-12", + "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-13", + "id": "fca-35786-3", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 28–31", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", - "current_to": "2006-10-12", + "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-14", + "id": "fca-35786-4", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 32–33", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", - "current_to": "2006-10-12", + "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-15", + "id": "fca-35786-5", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 34–35", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 5–6", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", - "current_to": "2006-10-12", + "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-16", + "id": "fca-35786-6", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 36–37", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 7–9", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", - "current_to": "2006-10-12", + "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-17", + "id": "fca-35786-7", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "para 38", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 10–11", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", - "current_to": "2006-10-12", + "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-18", + "id": "fca-35786-8", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 39–40", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 12", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", - "current_to": "2006-10-12", - "last_amended": "", + "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", + "current_to": "2007-12-06", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-19", + "id": "fca-35786-9", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 41–45", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 13", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", - "current_to": "2006-10-12", + "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-20", + "id": "fca-35786-10", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 46–50", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 13–16", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", - "current_to": "2006-10-12", + "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-21", + "id": "fca-35786-11", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 51–53", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 17–19", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", - "current_to": "2006-10-12", + "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-35313-22", + "id": "fca-35786-12", "doc_type": "caselaw", - "act_code": "2006 FCA 326", - "act_short": "Sittampalam", - "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", - "marginal_note": "paras 54–56", - "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 20–21", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2006-10-12", + "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2007-12-06", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" }, { - "id": "fca-31607-1", + "id": "fca-99694-1", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 1–3", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 1–4", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", - "current_to": "2004-01-09", + "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-2", + "id": "fca-99694-2", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 5–7", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", - "current_to": "2004-01-09", + "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-3", + "id": "fca-99694-3", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 8–10", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", - "current_to": "2004-01-09", + "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-4", + "id": "fca-99694-4", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 11–13", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", - "current_to": "2004-01-09", + "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-5", + "id": "fca-99694-5", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 14–15", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", - "current_to": "2004-01-09", + "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-6", + "id": "fca-99694-6", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 16–18", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", - "current_to": "2004-01-09", + "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-7", + "id": "fca-99694-7", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 4", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 19–20", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", - "current_to": "2004-01-09", + "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-8", + "id": "fca-99694-8", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 4–6", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 21–23", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", - "current_to": "2004-01-09", + "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-9", + "id": "fca-99694-9", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 7–8", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", - "current_to": "2004-01-09", + "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-10", + "id": "fca-99694-10", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 9–12", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 27–29", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", - "current_to": "2004-01-09", + "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-11", + "id": "fca-99694-11", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 13–15", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 30–31", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", - "current_to": "2004-01-09", + "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-12", + "id": "fca-99694-12", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 16–17", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 32", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", - "current_to": "2004-01-09", + "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-13", + "id": "fca-99694-13", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 18", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 33–34", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", - "current_to": "2004-01-09", + "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-14", + "id": "fca-99694-14", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 19", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", - "current_to": "2004-01-09", + "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet : (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada; (f) complies with international human rights instruments to which Canada is signatory. f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-15", + "id": "fca-99694-15", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 20", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", - "current_to": "2004-01-09", + "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-16", + "id": "fca-99694-16", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 21–22", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 35–39", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", - "current_to": "2004-01-09", + "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-17", + "id": "fca-99694-17", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "paras 23–24", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 40–42", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", - "current_to": "2004-01-09", + "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-31607-18", + "id": "fca-99694-18", "doc_type": "caselaw", - "act_code": "2004 FCA 4", - "act_short": "Thanabalasingham", - "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", - "marginal_note": "para 25", - "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 43–47", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2004-01-09", + "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-1", + "id": "fca-99694-19", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 1–3", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 48–50", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", - "current_to": "2018-01-19", + "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-2", + "id": "fca-99694-20", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 4–6", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 51–53", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", - "current_to": "2018-01-19", + "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-3", + "id": "fca-99694-21", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 7–9", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 54–56", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", - "current_to": "2018-01-19", + "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-4", + "id": "fca-99694-22", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 10–12", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 57–60", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", - "current_to": "2018-01-19", + "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-5", + "id": "fca-99694-23", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 13–14", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 61–62", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", - "current_to": "2018-01-19", + "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-6", + "id": "fca-99694-24", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 15–17", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 63–64", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", - "current_to": "2018-01-19", + "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-7", + "id": "fca-99694-25", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 18–21", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 65–67", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", - "current_to": "2018-01-19", + "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-8", + "id": "fca-99694-26", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 22–24", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 68–71", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", - "current_to": "2018-01-19", + "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-9", + "id": "fca-99694-27", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 25–26", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 72–73", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", - "current_to": "2018-01-19", + "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-10", + "id": "fca-99694-28", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 27–28", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 74–77", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", - "current_to": "2018-01-19", + "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-11", + "id": "fca-99694-29", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 29–30", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 78–81", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", - "current_to": "2018-01-19", + "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-12", + "id": "fca-99694-30", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 31–32", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 82–85", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", - "current_to": "2018-01-19", + "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-13", + "id": "fca-99694-31", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 33–36", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 86–87", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", - "current_to": "2018-01-19", + "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-14", + "id": "fca-99694-32", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 37–38", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 88–91", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", - "current_to": "2018-01-19", + "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-15", + "id": "fca-99694-33", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 39–40", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 92–96", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", - "current_to": "2018-01-19", + "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-16", + "id": "fca-99694-34", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 41–42", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 97–100", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", - "current_to": "2018-01-19", + "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-17", + "id": "fca-99694-35", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 43–44", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 101–105", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", - "current_to": "2018-01-19", + "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-18", + "id": "fca-99694-36", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 45–46", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 106", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", - "current_to": "2018-01-19", + "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-19", + "id": "fca-99694-37", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 47–48", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 107–109", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", "part": "Federal Court of Appeal", "division": "", - "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", - "current_to": "2018-01-19", + "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.\n\nIn view of the foregoing, I propose to dismiss this appeal and to answer the certified question, as formulated by the judge or as reformulated in paragraph 46 above, in the negative. “Johanne Gauthier” J.A. “I agree J.D. Denis Pelletier J.A.” “I agree D.J. Near J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2014-11-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" }, { - "id": "fca-305100-20", + "id": "fca-108889-1", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 49–50", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 1–5", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", - "current_to": "2018-01-19", + "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-305100-21", + "id": "fca-108889-2", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 51–52", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 6–10", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", - "current_to": "2018-01-19", + "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-305100-22", + "id": "fca-108889-3", "doc_type": "caselaw", - "act_code": "2018 FCA 22", - "act_short": "Lunyamila", - "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", - "marginal_note": "paras 53–54", - "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 11–15", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2018-01-19", + "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-1", + "id": "fca-108889-4", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 1–3", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 16–19", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", - "current_to": "2020-08-07", + "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-2", + "id": "fca-108889-5", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 4–6", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 20–23", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.", - "current_to": "2020-08-07", + "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-3", + "id": "fca-108889-6", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 7–10", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", - "current_to": "2020-08-07", + "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-4", + "id": "fca-108889-7", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 11–13", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 27–31", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", - "current_to": "2020-08-07", + "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-5", + "id": "fca-108889-8", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 14–16", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", - "current_to": "2020-08-07", + "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-6", + "id": "fca-108889-9", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 17–19", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", - "current_to": "2020-08-07", + "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-7", + "id": "fca-108889-10", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 20–21", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 32–33", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", - "current_to": "2020-08-07", - "last_amended": "", + "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", + "current_to": "2015-04-07", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-8", + "id": "fca-108889-11", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 22–24", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 34–36", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", - "current_to": "2020-08-07", + "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-9", + "id": "fca-108889-12", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 25–26", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 37–38", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", "part": "Federal Court of Appeal", "division": "", - "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", - "current_to": "2020-08-07", + "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", + "current_to": "2015-04-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" }, { - "id": "fca-483607-10", + "id": "fca-35313-1", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 27–29", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 1–5", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", - "current_to": "2020-08-07", + "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-11", + "id": "fca-35313-2", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 30", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 6–8", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", - "current_to": "2020-08-07", + "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-12", + "id": "fca-35313-3", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 31", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 9–12", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", - "current_to": "2020-08-07", + "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-13", + "id": "fca-35313-4", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 31–32", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", - "current_to": "2020-08-07", + "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-14", + "id": "fca-35313-5", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 33", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", - "current_to": "2020-08-07", + "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-15", + "id": "fca-35313-6", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 34–36", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 13–16", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", - "current_to": "2020-08-07", + "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-16", + "id": "fca-35313-7", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 37–38", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 17", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", - "current_to": "2020-08-07", + "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-17", + "id": "fca-35313-8", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 39", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 18–20", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", - "current_to": "2020-08-07", + "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-18", + "id": "fca-35313-9", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 40", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 21–22", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", - "current_to": "2020-08-07", + "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-19", + "id": "fca-35313-10", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 41–42", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 23–24", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", - "current_to": "2020-08-07", + "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-20", + "id": "fca-35313-11", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 43–45", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 25", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", - "current_to": "2020-08-07", + "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-21", + "id": "fca-35313-12", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 46–47", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 26–27", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", - "current_to": "2020-08-07", + "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-22", + "id": "fca-35313-13", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 48–51", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 28–31", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", - "current_to": "2020-08-07", + "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-23", + "id": "fca-35313-14", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 52–53", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 32–33", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", - "current_to": "2020-08-07", + "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-24", + "id": "fca-35313-15", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 54–56", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 34–35", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", - "current_to": "2020-08-07", + "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-25", + "id": "fca-35313-16", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 57–58", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 36–37", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", - "current_to": "2020-08-07", + "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-26", + "id": "fca-35313-17", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 59–60", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 38", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", - "current_to": "2020-08-07", + "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-27", + "id": "fca-35313-18", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 61–63", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 39–40", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", - "current_to": "2020-08-07", + "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-28", + "id": "fca-35313-19", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 64", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 41–45", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", - "current_to": "2020-08-07", + "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-29", + "id": "fca-35313-20", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 65–66", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 46–50", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", - "current_to": "2020-08-07", + "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-30", + "id": "fca-35313-21", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 67–70", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 51–53", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", - "current_to": "2020-08-07", + "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-31", + "id": "fca-35313-22", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 71–74", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 54–56", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", "part": "Federal Court of Appeal", "division": "", - "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", - "current_to": "2020-08-07", + "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.\n\nFor these reasons, I would dismiss the appeal. \"A.M. Linden\" J.A. “I agree. M. Nadon J.A.” “I agree. J. Edgar Sexton J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2006-10-12", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" }, { - "id": "fca-483607-32", + "id": "fca-31607-1", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 75–77", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 1–3", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", - "current_to": "2020-08-07", + "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-33", + "id": "fca-31607-2", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 78–79", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", - "current_to": "2020-08-07", + "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-34", + "id": "fca-31607-3", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 80–81", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", - "current_to": "2020-08-07", + "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-35", + "id": "fca-31607-4", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 82–83", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", - "current_to": "2020-08-07", + "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-36", + "id": "fca-31607-5", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 84–85", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", - "current_to": "2020-08-07", + "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-37", + "id": "fca-31607-6", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 86–87", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", - "current_to": "2020-08-07", + "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-38", + "id": "fca-31607-7", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 88–90", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", - "current_to": "2020-08-07", + "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-39", + "id": "fca-31607-8", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 91–93", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 4–6", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", - "current_to": "2020-08-07", + "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-40", + "id": "fca-31607-9", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 94–95", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 7–8", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", - "current_to": "2020-08-07", + "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-41", + "id": "fca-31607-10", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 96–98", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 9–12", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", - "current_to": "2020-08-07", + "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-42", + "id": "fca-31607-11", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 99–101", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 13–15", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", - "current_to": "2020-08-07", + "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-43", + "id": "fca-31607-12", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 102–105", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 16–17", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", - "current_to": "2020-08-07", + "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-44", + "id": "fca-31607-13", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 106–107", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 18", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", - "current_to": "2020-08-07", + "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-45", + "id": "fca-31607-14", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 108–109", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 19", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", - "current_to": "2020-08-07", + "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-46", + "id": "fca-31607-15", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 110–111", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 20", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", - "current_to": "2020-08-07", + "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-47", + "id": "fca-31607-16", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 112–113", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 21–22", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", - "current_to": "2020-08-07", + "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-48", + "id": "fca-31607-17", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 114–117", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 23–24", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", - "current_to": "2020-08-07", + "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-49", + "id": "fca-31607-18", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 118–120", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 25", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", "part": "Federal Court of Appeal", "division": "", - "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", - "current_to": "2020-08-07", + "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2004-01-09", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" }, { - "id": "fca-483607-50", + "id": "fca-305100-1", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 121–122", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 1–3", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", - "current_to": "2020-08-07", + "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-51", + "id": "fca-305100-2", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 123–124", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 4–6", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", - "current_to": "2020-08-07", + "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-52", + "id": "fca-305100-3", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 125–127", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 7–9", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", - "current_to": "2020-08-07", + "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-53", + "id": "fca-305100-4", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 128–130", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 10–12", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", - "current_to": "2020-08-07", + "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-54", + "id": "fca-305100-5", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 131–132", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 13–14", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", - "current_to": "2020-08-07", + "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-55", + "id": "fca-305100-6", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 133", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 15–17", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", - "current_to": "2020-08-07", + "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-56", + "id": "fca-305100-7", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 134", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 18–21", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", - "current_to": "2020-08-07", + "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-57", + "id": "fca-305100-8", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 135", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 22–24", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", - "current_to": "2020-08-07", + "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-58", + "id": "fca-305100-9", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 136–137", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 25–26", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", - "current_to": "2020-08-07", - "last_amended": "", + "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", + "current_to": "2018-01-19", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-59", + "id": "fca-305100-10", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 138–139", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 27–28", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", - "current_to": "2020-08-07", + "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-60", + "id": "fca-305100-11", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 140–141", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 29–30", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", - "current_to": "2020-08-07", + "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-61", + "id": "fca-305100-12", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 142–144", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 31–32", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", - "current_to": "2020-08-07", + "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-62", + "id": "fca-305100-13", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 145", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 33–36", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", - "current_to": "2020-08-07", + "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-63", + "id": "fca-305100-14", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 146–147", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 37–38", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", - "current_to": "2020-08-07", + "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-64", + "id": "fca-305100-15", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 148–149", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 39–40", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", - "current_to": "2020-08-07", + "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-65", + "id": "fca-305100-16", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 150–153", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 41–42", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", - "current_to": "2020-08-07", + "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-66", + "id": "fca-305100-17", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 154–156", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 43–44", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", - "current_to": "2020-08-07", + "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-67", + "id": "fca-305100-18", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 157–158", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 45–46", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", - "current_to": "2020-08-07", + "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-68", + "id": "fca-305100-19", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "para 159", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 47–48", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", - "current_to": "2020-08-07", + "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-483607-69", + "id": "fca-305100-20", "doc_type": "caselaw", - "act_code": "2020 FCA 130", - "act_short": "Brown", - "act_name": "Brown v. Canada (Citizenship and Immigration)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", - "marginal_note": "paras 160–163", - "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 49–50", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-08-07", + "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-36347-1", + "id": "fca-305100-21", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 1–4", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 51–52", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", - "current_to": "2009-03-13", + "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-36347-2", + "id": "fca-305100-22", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 5–8", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 53–54", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", - "current_to": "2009-03-13", + "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2018-01-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" }, { - "id": "fca-36347-3", + "id": "fca-483607-1", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 9–12", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 1–3", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", - "current_to": "2009-03-13", + "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-4", + "id": "fca-483607-2", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 4–6", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", - "current_to": "2009-03-13", + "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-5", + "id": "fca-483607-3", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 13", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 7–10", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", - "current_to": "2009-03-13", + "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-6", + "id": "fca-483607-4", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 14–15", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 11–13", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", - "current_to": "2009-03-13", + "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-7", + "id": "fca-483607-5", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 16–17", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 14–16", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", - "current_to": "2009-03-13", + "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-8", + "id": "fca-483607-6", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 18–19", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 17–19", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", - "current_to": "2009-03-13", + "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-9", + "id": "fca-483607-7", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", "marginal_note": "paras 20–21", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", - "current_to": "2009-03-13", + "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-10", + "id": "fca-483607-8", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 22–25", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 22–24", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", - "current_to": "2009-03-13", + "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-11", + "id": "fca-483607-9", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 26–28", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 25–26", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", - "current_to": "2009-03-13", + "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-12", + "id": "fca-483607-10", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 29–30", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 27–29", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", - "current_to": "2009-03-13", + "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-13", + "id": "fca-483607-11", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 31–33", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 30", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", - "current_to": "2009-03-13", + "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-14", + "id": "fca-483607-12", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 34–35", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 31", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", - "current_to": "2009-03-13", + "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-15", + "id": "fca-483607-13", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 36–37", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 31–32", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", - "current_to": "2009-03-13", + "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-16", + "id": "fca-483607-14", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 38–40", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 33", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", - "current_to": "2009-03-13", + "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-17", + "id": "fca-483607-15", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 41–43", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 34–36", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", - "current_to": "2009-03-13", + "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-18", + "id": "fca-483607-16", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 44–46", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 37–38", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", - "current_to": "2009-03-13", + "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-19", + "id": "fca-483607-17", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 47–48", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 39", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", - "current_to": "2009-03-13", + "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-20", + "id": "fca-483607-18", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 49–50", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 40", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", - "current_to": "2009-03-13", + "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-21", + "id": "fca-483607-19", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 51", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 41–42", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", - "current_to": "2009-03-13", + "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-22", + "id": "fca-483607-20", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 51–53", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 43–45", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", - "current_to": "2009-03-13", + "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-23", + "id": "fca-483607-21", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 54–56", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 46–47", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", - "current_to": "2009-03-13", + "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-24", + "id": "fca-483607-22", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 57", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 48–51", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", - "current_to": "2009-03-13", + "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-25", + "id": "fca-483607-23", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 58–59", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 52–53", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", - "current_to": "2009-03-13", + "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-26", + "id": "fca-483607-24", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 60–63", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 54–56", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", - "current_to": "2009-03-13", + "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-27", + "id": "fca-483607-25", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 64", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 57–58", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", - "current_to": "2009-03-13", + "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-28", + "id": "fca-483607-26", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 65", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 59–60", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", - "current_to": "2009-03-13", + "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-29", + "id": "fca-483607-27", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 66", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 61–63", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", - "current_to": "2009-03-13", + "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-30", + "id": "fca-483607-28", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 66–68", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 64", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", - "current_to": "2009-03-13", + "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-31", + "id": "fca-483607-29", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 69–72", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 65–66", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", - "current_to": "2009-03-13", + "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-32", + "id": "fca-483607-30", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 73–76", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 67–70", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", - "current_to": "2009-03-13", + "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-33", + "id": "fca-483607-31", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 77–78", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 71–74", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", - "current_to": "2009-03-13", + "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-34", + "id": "fca-483607-32", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 79–80", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 75–77", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", - "current_to": "2009-03-13", + "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-35", + "id": "fca-483607-33", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 81–83", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 78–79", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", - "current_to": "2009-03-13", + "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-36", + "id": "fca-483607-34", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 84–85", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 80–81", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", - "current_to": "2009-03-13", + "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-37", + "id": "fca-483607-35", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 86", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 82–83", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", - "current_to": "2009-03-13", + "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-38", + "id": "fca-483607-36", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "paras 86–88", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 84–85", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", - "current_to": "2009-03-13", + "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-36347-39", + "id": "fca-483607-37", "doc_type": "caselaw", - "act_code": "2009 FCA 81", - "act_short": "Baron", - "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", - "marginal_note": "para 89", - "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 86–87", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2009-03-13", + "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-1", + "id": "fca-483607-38", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 1–3", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 88–90", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", - "current_to": "2022-03-29", + "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-2", + "id": "fca-483607-39", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 3–5", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 91–93", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", - "current_to": "2022-03-29", + "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-3", + "id": "fca-483607-40", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 6–8", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 94–95", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", - "current_to": "2022-03-29", + "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-4", + "id": "fca-483607-41", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 9–12", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 96–98", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", - "current_to": "2022-03-29", + "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-5", + "id": "fca-483607-42", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 13–16", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 99–101", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", - "current_to": "2022-03-29", + "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-6", + "id": "fca-483607-43", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 17–19", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 102–105", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", - "current_to": "2022-03-29", + "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-7", + "id": "fca-483607-44", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 20–22", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 106–107", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", - "current_to": "2022-03-29", + "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-8", + "id": "fca-483607-45", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 23–24", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 108–109", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", - "current_to": "2022-03-29", + "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-9", + "id": "fca-483607-46", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 25–28", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 110–111", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", - "current_to": "2022-03-29", + "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-10", + "id": "fca-483607-47", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 29–31", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 112–113", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", - "current_to": "2022-03-29", + "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-11", + "id": "fca-483607-48", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 32–36", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 114–117", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", - "current_to": "2022-03-29", + "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-12", + "id": "fca-483607-49", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 37–39", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 118–120", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", - "current_to": "2022-03-29", + "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-13", + "id": "fca-483607-50", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 40–41", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 121–122", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", - "current_to": "2022-03-29", + "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-14", + "id": "fca-483607-51", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 42–44", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 123–124", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", - "current_to": "2022-03-29", - "last_amended": "", + "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", + "current_to": "2020-08-07", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-15", + "id": "fca-483607-52", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 45–47", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 125–127", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", - "current_to": "2022-03-29", + "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-16", + "id": "fca-483607-53", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 48–49", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 128–130", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", - "current_to": "2022-03-29", + "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-17", + "id": "fca-483607-54", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 50", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 131–132", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", - "current_to": "2022-03-29", + "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-18", + "id": "fca-483607-55", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 51–52", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 133", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", - "current_to": "2022-03-29", + "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-19", + "id": "fca-483607-56", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 53–55", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 134", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", - "current_to": "2022-03-29", + "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-20", + "id": "fca-483607-57", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 56–58", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 135", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", - "current_to": "2022-03-29", + "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-21", + "id": "fca-483607-58", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 59", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 136–137", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", - "current_to": "2022-03-29", + "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-22", + "id": "fca-483607-59", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 60", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 138–139", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", - "current_to": "2022-03-29", + "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-23", + "id": "fca-483607-60", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 60–61", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 140–141", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", - "current_to": "2022-03-29", + "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-24", + "id": "fca-483607-61", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 62–64", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 142–144", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", - "current_to": "2022-03-29", + "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-25", + "id": "fca-483607-62", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 65–67", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 145", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", - "current_to": "2022-03-29", + "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-26", + "id": "fca-483607-63", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 68–70", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 146–147", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", - "current_to": "2022-03-29", + "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-27", + "id": "fca-483607-64", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 71–74", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 148–149", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", - "current_to": "2022-03-29", + "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-28", + "id": "fca-483607-65", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 75–78", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 150–153", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", - "current_to": "2022-03-29", + "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-29", + "id": "fca-483607-66", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 79–81", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 154–156", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", - "current_to": "2022-03-29", + "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-30", + "id": "fca-483607-67", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "paras 82–83", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 157–158", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", - "current_to": "2022-03-29", + "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-31", + "id": "fca-483607-68", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 159", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", - "current_to": "2022-03-29", + "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-32", + "id": "fca-483607-69", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 160–163", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", "part": "Federal Court of Appeal", "division": "", - "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", - "current_to": "2022-03-29", + "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nI would answer the question in the negative and would dismiss the appeal. Consistent with the request of the parties, I would make no order as to costs. \"Donald J. Rennie\" J.A. “I agree. Johanne Gauthier, J.A.” “I agree. David Stratas, J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2020-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" }, { - "id": "fca-520921-33", + "id": "fca-36347-1", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 84", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 1–4", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", - "current_to": "2022-03-29", + "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-520921-34", + "id": "fca-36347-2", "doc_type": "caselaw", - "act_code": "2022 FCA 50", - "act_short": "Galindo Camayo", - "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", - "marginal_note": "para 85", - "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 5–8", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", - "current_to": "2022-03-29", + "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-1", + "id": "fca-36347-3", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 1–4", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 9–12", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", - "current_to": "2021-08-05", + "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-2", + "id": "fca-36347-4", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 5–8", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", - "current_to": "2021-08-05", + "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-3", + "id": "fca-36347-5", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 9–11", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", - "current_to": "2021-08-05", + "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-4", + "id": "fca-36347-6", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 12–13", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 14–15", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", - "current_to": "2021-08-05", + "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-5", + "id": "fca-36347-7", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 14–15", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 16–17", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court’s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", - "current_to": "2021-08-05", + "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-6", + "id": "fca-36347-8", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 16–19", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 18–19", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", - "current_to": "2021-08-05", + "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-7", + "id": "fca-36347-9", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", "marginal_note": "paras 20–21", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", - "current_to": "2021-08-05", + "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-8", + "id": "fca-36347-10", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 22–24", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 22–25", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", - "current_to": "2021-08-05", + "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-9", + "id": "fca-36347-11", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 25–26", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 26–28", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", - "current_to": "2021-08-05", + "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-10", + "id": "fca-36347-12", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 27", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 29–30", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", - "current_to": "2021-08-05", + "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-11", + "id": "fca-36347-13", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 28–29", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 31–33", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", - "current_to": "2021-08-05", + "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-12", + "id": "fca-36347-14", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 30–31", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 34–35", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", - "current_to": "2021-08-05", + "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-13", + "id": "fca-36347-15", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 32–33", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 36–37", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", - "current_to": "2021-08-05", + "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-14", + "id": "fca-36347-16", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 34–35", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 38–40", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", - "current_to": "2021-08-05", + "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-15", + "id": "fca-36347-17", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 36", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 41–43", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", - "current_to": "2021-08-05", + "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-16", + "id": "fca-36347-18", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 37–38", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 44–46", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", - "current_to": "2021-08-05", + "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-17", + "id": "fca-36347-19", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 39–40", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 47–48", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", - "current_to": "2021-08-05", + "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-18", + "id": "fca-36347-20", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 49–50", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", - "current_to": "2021-08-05", + "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-19", + "id": "fca-36347-21", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 41", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 51", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", - "current_to": "2021-08-05", + "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-20", + "id": "fca-36347-22", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 42–43", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 51–53", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", - "current_to": "2021-08-05", + "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-21", + "id": "fca-36347-23", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 44", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 54–56", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", - "current_to": "2021-08-05", + "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-22", + "id": "fca-36347-24", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 45–46", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 57", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", - "current_to": "2021-08-05", + "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-23", + "id": "fca-36347-25", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 47–48", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 58–59", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", - "current_to": "2021-08-05", + "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-24", + "id": "fca-36347-26", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 49–50", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 60–63", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", - "current_to": "2021-08-05", + "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-25", + "id": "fca-36347-27", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 51–53", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 64", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", - "current_to": "2021-08-05", + "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-26", + "id": "fca-36347-28", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 54", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 65", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", - "current_to": "2021-08-05", + "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-27", + "id": "fca-36347-29", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 55", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 66", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", - "current_to": "2021-08-05", + "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-28", + "id": "fca-36347-30", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 55–56", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 66–68", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", - "current_to": "2021-08-05", + "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-29", + "id": "fca-36347-31", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 57–58", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 69–72", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", - "current_to": "2021-08-05", + "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-30", + "id": "fca-36347-32", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 59–60", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 73–76", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", - "current_to": "2021-08-05", + "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-31", + "id": "fca-36347-33", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 61–63", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 77–78", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", - "current_to": "2021-08-05", + "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-32", + "id": "fca-36347-34", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 64–65", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 79–80", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", - "current_to": "2021-08-05", + "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-33", + "id": "fca-36347-35", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 66–67", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 81–83", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", - "current_to": "2021-08-05", + "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-34", + "id": "fca-36347-36", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 68–71", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 84–85", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", - "current_to": "2021-08-05", + "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-35", + "id": "fca-36347-37", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 72–73", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 86", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", - "current_to": "2021-08-05", + "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-36", + "id": "fca-36347-38", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 74", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 86–88", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", - "current_to": "2021-08-05", + "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-37", + "id": "fca-36347-39", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 75", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 89", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", "part": "Federal Court of Appeal", "division": "", - "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", - "current_to": "2021-08-05", + "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2009-03-13", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" }, { - "id": "fca-501244-38", + "id": "fca-520921-1", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 76–78", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 1–3", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", - "current_to": "2021-08-05", + "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-39", + "id": "fca-520921-2", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 79", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 3–5", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", - "current_to": "2021-08-05", + "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-40", + "id": "fca-520921-3", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 80", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 6–8", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court’s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", - "current_to": "2021-08-05", + "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-41", + "id": "fca-520921-4", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 80–82", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 9–12", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", - "current_to": "2021-08-05", + "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-42", + "id": "fca-520921-5", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 83", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 13–16", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", - "current_to": "2021-08-05", + "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-43", + "id": "fca-520921-6", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 83–84", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 17–19", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", - "current_to": "2021-08-05", + "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-44", + "id": "fca-520921-7", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 85", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 20–22", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", - "current_to": "2021-08-05", + "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-45", + "id": "fca-520921-8", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 23–24", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", - "current_to": "2021-08-05", + "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-46", + "id": "fca-520921-9", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 86", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 25–28", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", - "current_to": "2021-08-05", + "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-47", + "id": "fca-520921-10", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 86–87", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 29–31", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", - "current_to": "2021-08-05", + "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-48", + "id": "fca-520921-11", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 32–36", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", - "current_to": "2021-08-05", + "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-49", + "id": "fca-520921-12", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 88", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 37–39", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", - "current_to": "2021-08-05", + "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-50", + "id": "fca-520921-13", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 89", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 40–41", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", - "current_to": "2021-08-05", + "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-51", + "id": "fca-520921-14", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 90–92", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 42–44", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", - "current_to": "2021-08-05", + "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-52", + "id": "fca-520921-15", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 93–95", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 45–47", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", - "current_to": "2021-08-05", + "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-53", + "id": "fca-520921-16", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 96–98", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 48–49", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", - "current_to": "2021-08-05", + "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-54", + "id": "fca-520921-17", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 99", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 50", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", - "current_to": "2021-08-05", + "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-55", + "id": "fca-520921-18", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 51–52", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", - "current_to": "2021-08-05", + "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-56", + "id": "fca-520921-19", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 53–55", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", - "current_to": "2021-08-05", + "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-57", + "id": "fca-520921-20", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 100", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 56–58", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", - "current_to": "2021-08-05", + "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-58", + "id": "fca-520921-21", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 100–101", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 59", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", - "current_to": "2021-08-05", + "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-59", + "id": "fca-520921-22", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 102–103", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 60", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", - "current_to": "2021-08-05", + "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-60", + "id": "fca-520921-23", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 104–106", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 60–61", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", - "current_to": "2021-08-05", + "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-61", + "id": "fca-520921-24", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 107", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 62–64", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", - "current_to": "2021-08-05", + "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-62", + "id": "fca-520921-25", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 108", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 65–67", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", - "current_to": "2021-08-05", + "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-63", + "id": "fca-520921-26", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 109", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 68–70", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", - "current_to": "2021-08-05", + "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-64", + "id": "fca-520921-27", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 110", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 71–74", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", - "current_to": "2021-08-05", + "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-65", + "id": "fca-520921-28", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 111–112", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 75–78", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", - "current_to": "2021-08-05", + "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-66", + "id": "fca-520921-29", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 113–114", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 79–81", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", - "current_to": "2021-08-05", + "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-67", + "id": "fca-520921-30", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 115–116", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 82–83", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", - "current_to": "2021-08-05", + "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-68", + "id": "fca-520921-31", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 117", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", - "current_to": "2021-08-05", + "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-69", + "id": "fca-520921-32", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", - "current_to": "2021-08-05", + "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-70", + "id": "fca-520921-33", "doc_type": "caselaw", - "act_code": "2021 FCA 161", - "act_short": "Best Buy", - "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", - "section": "", - "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", - "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", "part": "Federal Court of Appeal", "division": "", - "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", - "current_to": "2021-08-05", + "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", + "current_to": "2022-03-29", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" }, { - "id": "fca-501244-71", + "id": "fca-520921-34", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 85", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-501244-1", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", + "marginal_note": "paras 1–4", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", + "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-72", + "id": "fca-501244-2", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", + "marginal_note": "paras 5–8", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", + "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-73", + "id": "fca-501244-3", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 118", + "marginal_note": "paras 9–11", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", + "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-74", + "id": "fca-501244-4", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 118–119", + "marginal_note": "paras 12–13", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", + "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-75", + "id": "fca-501244-5", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 120–122", + "marginal_note": "paras 14–15", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", + "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court’s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-76", + "id": "fca-501244-6", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", + "marginal_note": "paras 16–19", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", + "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-77", + "id": "fca-501244-7", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", + "marginal_note": "paras 20–21", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", + "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-78", + "id": "fca-501244-8", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 123", + "marginal_note": "paras 22–24", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-79", + "id": "fca-501244-9", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 124", + "marginal_note": "paras 25–26", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", + "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-80", + "id": "fca-501244-10", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", + "marginal_note": "para 27", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", + "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-81", + "id": "fca-501244-11", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", + "marginal_note": "paras 28–29", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", + "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-82", + "id": "fca-501244-12", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", + "marginal_note": "paras 30–31", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", + "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-83", + "id": "fca-501244-13", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", + "marginal_note": "paras 32–33", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", + "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-84", + "id": "fca-501244-14", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "para 125", + "marginal_note": "paras 34–35", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", + "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-85", + "id": "fca-501244-15", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 125–126", + "marginal_note": "para 36", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", + "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-86", + "id": "fca-501244-16", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 127–128", + "marginal_note": "paras 37–38", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", + "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-501244-87", + "id": "fca-501244-17", "doc_type": "caselaw", "act_code": "2021 FCA 161", "act_short": "Best Buy", "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", - "marginal_note": "paras 129–131", + "marginal_note": "paras 39–40", "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", + "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", "current_to": "2021-08-05", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-1", + "id": "fca-501244-18", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 1–3", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", - "current_to": "2020-03-19", + "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-2", + "id": "fca-501244-19", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 4–6", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", - "current_to": "2020-03-19", + "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-3", + "id": "fca-501244-20", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 7", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 42–43", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", - "current_to": "2020-03-19", + "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-4", + "id": "fca-501244-21", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 8–9", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 44", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", - "current_to": "2020-03-19", + "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-5", + "id": "fca-501244-22", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 10–12", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 45–46", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", - "current_to": "2020-03-19", + "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-6", + "id": "fca-501244-23", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 13", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 47–48", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", - "current_to": "2020-03-19", + "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-7", + "id": "fca-501244-24", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 14–15", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 49–50", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", - "current_to": "2020-03-19", + "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-8", + "id": "fca-501244-25", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 16–18", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 51–53", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", - "current_to": "2020-03-19", + "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-9", + "id": "fca-501244-26", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 19–21", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 54", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", - "current_to": "2020-03-19", + "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-10", + "id": "fca-501244-27", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 22–25", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 55", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", - "current_to": "2020-03-19", + "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-11", + "id": "fca-501244-28", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 26–27", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 55–56", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", - "current_to": "2020-03-19", + "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-12", + "id": "fca-501244-29", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 28–29", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 57–58", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", - "current_to": "2020-03-19", + "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45–52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-13", + "id": "fca-501244-30", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 30–32", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 59–60", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", - "current_to": "2020-03-19", + "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-14", + "id": "fca-501244-31", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 33–35", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 61–63", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", - "current_to": "2020-03-19", + "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-15", + "id": "fca-501244-32", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 36", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 64–65", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", - "current_to": "2020-03-19", + "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-16", + "id": "fca-501244-33", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 37", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 66–67", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", - "current_to": "2020-03-19", + "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-17", + "id": "fca-501244-34", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 38", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 68–71", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", - "current_to": "2020-03-19", + "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-18", + "id": "fca-501244-35", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 39", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 72–73", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", - "current_to": "2020-03-19", + "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-19", + "id": "fca-501244-36", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 40–41", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 74", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", - "current_to": "2020-03-19", - "last_amended": "", + "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", + "current_to": "2021-08-05", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-20", + "id": "fca-501244-37", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 42–43", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 75", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", - "current_to": "2020-03-19", + "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-21", + "id": "fca-501244-38", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 44–46", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 76–78", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", - "current_to": "2020-03-19", + "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-22", + "id": "fca-501244-39", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 47–49", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 79", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", - "current_to": "2020-03-19", + "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-23", + "id": "fca-501244-40", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "paras 50–51", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 80", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", - "current_to": "2020-03-19", + "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court’s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-466027-24", + "id": "fca-501244-41", "doc_type": "caselaw", - "act_code": "2020 FCA 64", - "act_short": "Honey Fashions", - "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", - "marginal_note": "para 52", - "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 80–82", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2020-03-19", + "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-1", + "id": "fca-501244-42", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 1–3", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 83", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", - "current_to": "2019-08-07", + "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-2", + "id": "fca-501244-43", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 4", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 83–84", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", - "current_to": "2019-08-07", + "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-3", + "id": "fca-501244-44", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 5–6", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 85", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", - "current_to": "2019-08-07", + "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-4", + "id": "fca-501244-45", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 7–8", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", - "current_to": "2019-08-07", + "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-5", + "id": "fca-501244-46", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 9", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", - "current_to": "2019-08-07", + "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-6", + "id": "fca-501244-47", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 10–11", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 86–87", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", - "current_to": "2019-08-07", + "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-7", + "id": "fca-501244-48", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 12–14", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court’s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", - "current_to": "2019-08-07", + "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-8", + "id": "fca-501244-49", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 15–17", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", - "current_to": "2019-08-07", + "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-9", + "id": "fca-501244-50", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 18–20", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 89", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", - "current_to": "2019-08-07", + "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-10", + "id": "fca-501244-51", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 21–22", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 90–92", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 12 (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. 135 (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", - "current_to": "2019-08-07", + "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-11", + "id": "fca-501244-52", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 23", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 93–95", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", - "current_to": "2019-08-07", + "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-12", + "id": "fca-501244-53", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 24", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 96–98", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", - "current_to": "2019-08-07", + "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-13", + "id": "fca-501244-54", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 25–27", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 99", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", - "current_to": "2019-08-07", + "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-14", + "id": "fca-501244-55", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 28–31", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", - "current_to": "2019-08-07", + "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-15", + "id": "fca-501244-56", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 32–34", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any act of Parliament, other than this act or the Customs Tariff.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", - "current_to": "2019-08-07", + "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-16", + "id": "fca-501244-57", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 35–39", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", - "current_to": "2019-08-07", + "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-17", + "id": "fca-501244-58", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 40–43", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 100–101", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", - "current_to": "2019-08-07", + "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-18", + "id": "fca-501244-59", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 44–45", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 102–103", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", - "current_to": "2019-08-07", + "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-19", + "id": "fca-501244-60", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 46", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 104–106", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", - "current_to": "2019-08-07", + "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-20", + "id": "fca-501244-61", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 46–49", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 107", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", - "current_to": "2019-08-07", + "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-21", + "id": "fca-501244-62", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", - "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 50–53", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 108", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", - "current_to": "2019-08-07", + "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-22", + "id": "fca-501244-63", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 54–56", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 109", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", - "current_to": "2019-08-07", + "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-23", + "id": "fca-501244-64", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 57–58", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 110", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", - "current_to": "2019-08-07", + "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-24", + "id": "fca-501244-65", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 59–62", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 111–112", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", - "current_to": "2019-08-07", + "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-25", + "id": "fca-501244-66", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "paras 63–64", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 113–114", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", - "current_to": "2019-08-07", + "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-26", + "id": "fca-501244-67", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 115–116", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes imposées en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", - "current_to": "2019-08-07", + "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-27", + "id": "fca-501244-68", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 117", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu’elles n’ont pas fait l’objet de la déclaration prévue au présent article, les marchandises, visées aux nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, a) elles sont en la possession effective ou parmi les bagages d’une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; (b) that are not charged with duties, and b) elles ne sont pas passibles de droits; (c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff may not be seized as forfeit under this Act by reason only that they were not reported under this section. c) leur importation n’est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d’une loi fédérale autre que la présente loi ou le Tarif des douanes.", - "current_to": "2019-08-07", + "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-28", + "id": "fca-501244-69", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", - "current_to": "2019-08-07", + "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-29", + "id": "fca-501244-70", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", - "current_to": "2019-08-07", + "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-30", + "id": "fca-501244-71", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", - "current_to": "2019-08-07", + "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-31", + "id": "fca-501244-72", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", - "current_to": "2019-08-07", + "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-32", + "id": "fca-501244-73", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", - "current_to": "2019-08-07", + "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-33", + "id": "fca-501244-74", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 118–119", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", - "current_to": "2019-08-07", + "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-34", + "id": "fca-501244-75", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 120–122", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", - "current_to": "2019-08-07", + "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-35", + "id": "fca-501244-76", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", - "current_to": "2019-08-07", + "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-36", + "id": "fca-501244-77", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", - "current_to": "2019-08-07", + "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-419470-37", + "id": "fca-501244-78", "doc_type": "caselaw", - "act_code": "2019 FCA 214", - "act_short": "Hociung", - "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", - "marginal_note": "para 65", - "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", - "current_to": "2019-08-07", + "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-1", + "id": "fca-501244-79", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 1–3", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 124", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The primary issue on this appeal is whether the Immigration Division properly found that, notwithstanding he was under the age of eighteen years at the relevant time (a minor), there were reasonable grounds to believe that the appellant, Piran Ahmadi Poshteh, was a member of a terrorist organization for purposes of determining whether he was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration Refugee and Protection Act, S.C. 2001, c. 27. Paragraph 34(1)(f) provides: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for . . . (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: . . . f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c). FACTS\n\nThe following facts are taken from the decision of the Immigration Division in Mr. Poshteh's admissibility hearing. They are not in dispute.\n\nMr. Poshteh is a citizen of Iran. His father had been a member of the Mujahedin-e-Khalq (MEK), an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in terrorism. In 1999, when Mr. Poshteh was 15, his father died. Mr. Poshteh blamed the Iranian government for his father's death.", - "current_to": "2005-03-04", + "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-2", + "id": "fca-501244-80", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 4–6", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Poshteh wanted to join the MEK to help achieve his father's goal, which he understood was to overthrow the Iranian government. However, when he approached his father's friend, whom he believed was a member of the MEK, the friend would not allow him to join, although he did allow him to participate through the dissemination of propaganda.\n\nMr. Poshteh and a friend distributed MEK propaganda leaflets in Tehran one or two times per month. He carried on this activity from February 2000 until June 2002, when he was almost eighteen (seventeen years and eleven months). He ceased this activity when he was arrested and detained for two weeks by the police. Aside from distributing the propaganda leaflets, he had no other involvement in MEK activities.\n\nMr. Poshteh arrived in Canada on September 16, 2002, and was interviewed by an immigration officer. Pursuant to subsection 44(1) of the Act, the officer reported, among other things, that Mr. Poshteh was inadmissible to Canada under paragraph 34(1)(f) of the Act. The immigration officer's report was transmitted to the Minister of Citizenship and Immigration under subsection 44(1) of the Act. The Minister referred the report to the Immigration Division for an admissibility hearing under subsection 44(2) of the Act. Following a hearing, the Immigration Division found that there were reasonable grounds to believe that Mr. Poshteh was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism and that Mr. Poshteh therefore was not admissible to Canada pursuant to 34(1)(f) of the Act. JUDICIAL REVIEW AND CERTIFIED QUESTION", - "current_to": "2005-03-04", + "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-3", + "id": "fca-501244-81", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 7–10", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Poshteh sought judicial review in the Federal Court. Gibson J. found no reviewable error by the Immigration Division and dismissed the judicial review. However, he certified the following question for appeal pursuant to paragraph 74(d) of the Act: Having regard to section 7 of the Canadian Charter of Rights and Freedoms and international human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, is there, on the particular facts underlying this application for judicial review, any distinction in liability between the Applicant who was a minor at all times relevant to his activities on behalf of the Mujahedin-e-Khalq and an adult undertaking equivalent activities on behalf of such an organization without being a formal member of that organization, for inadmissibility under subsection 34(1) of the Immigration and Refugee Protection Act?\n\nThis appeal arises from that certified question. ISSUES\n\nThere are two issues in the appeal: 1. whether, irrespective of his age, there are reasonable grounds to believe that Mr. Poshteh was a member of the MEK; and 2. whether Mr. Poshteh's status as a minor is a relevant consideration under paragraph 34(1)(f) of the Act and if so, what considerations are to be taken into account in determining membership by a minor.\n\nWhether there are reasonable grounds to believe that the MEK engages, has engaged or will engage in terrorism is not in issue. The Immigration Division found there were reasonable grounds to so believe and this determination is not challenged by Mr. Poshteh. POSITION OF MR. POSHTEH", - "current_to": "2005-03-04", + "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-4", + "id": "fca-501244-82", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 11–14", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Poshteh says that the test for membership in a terrorist organization should be based on the degree of integration of the individual within the organization. He says he was not sufficiently integrated into the MEK to be considered a member.\n\nHowever, his primary argument is that in the case of a minor, the term \"member\" in paragraph 34(1)(f) should be construed narrowly, interpreted as applying only to individuals directly involved in violence or who hold leadership positions in the terrorist organization. Such an interpretation would mean that paragraph 34(1)(f) would be inapplicable to Mr. Poshteh because his activities were not violent and because he was not acting in a leadership capacity. POSITION OF THE INTERVENER\n\nThe intervener, Canadian Foundation for Children, Youth and the Law, takes the position that \"the decision as to whether or not the pamphleting activities of a child make the person inadmissible as a member of a terrorist organization must be made in the best interests of the child, whether the child seeks asylum in Canada or seeks asylum after becoming a rehabilitated young adult.\" ANALYSIS Section 33\n\nSection 33 provides: 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.", - "current_to": "2005-03-04", + "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-5", + "id": "fca-501244-83", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 15–19", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The parties do not take issue with the test for inadmissibility applied by the Immigration Division - that there are reasonable grounds to believe that the foreign national was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. For the sake of simplicity, I will take the liberty of referring to the security grounds for inadmissibility in this case as \"being a member of a terrorist organization.\" Standard of Review - Decision of the Immigration Division\n\nThere is disagreement between the parties as to whether the standard of review that should be applied by the Federal Court to the Immigration Division's decision is reasonableness or correctness. Based on the approach of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a pragmatic and functional analysis is required.\n\nA serious question of general importance arising from the decision of the Immigration Division has been certified under paragraph 74(d) of the Act. Although the question refers to \"the particular facts underlying this application for judicial review,\" I infer that the question was certified for appeal because, in the opinion of Gibson J., the application of paragraph 34(1)(f) to minors is a question of general importance. This generally suggests a less deferential standard of review.\n\nThe Immigration Division has expertise in fact-finding which requires great deference to its findings of fact. In this case, the findings of fact by the Immigration Division are not in dispute.\n\nThe issues here are not \"polycentric,\" but rather are ones in which the state is a protagonist against the individual. This supports less deference on both issues.", - "current_to": "2005-03-04", + "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-6", + "id": "fca-501244-84", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 20–21", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "Both issues involve questions of mixed fact and law. However, the legal components of the issues can be extricated from the mixed questions. In the case of the first issue, the legal question is the interpretation of the term \"member\" in paragraph 34(1)(f). In the case of the second issue, the legal question is whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant.\n\nParagraph 34(1)(f) forms part of the Immigration Division's constituent legislation. The question of membership in a terrorist organization is not something that is extraneous to its regular work. The expertise of the Immigration Division is in, among other things, determining whether criteria for inadmissibility have been established. These criteria include membership in a terrorist organization. Therefore, the interpretation of the term \"member\" in paragraph 34(1)(f) is, I think, a legal matter with respect to which the Immigration Division has some expertise. Finally, I would note that the interpretation of the term \"member\" in paragraph 34(1)(f), while necessary to address, is not a matter squarely within the question certified by Gibson J. Therefore, some deference is due the Immigration Division on this legal issue.", - "current_to": "2005-03-04", + "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-7", + "id": "fca-501244-85", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 22–24", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 125–126", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "However, whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant, is not a legal question that the Immigration Division would regularly encounter. There is no reference to age in paragraph 34(1)(f). On the other hand, the courts do encounter cases in which the application of a law to a minor is a relevant consideration. Whether age is to be taken into account and if so, in what manner are matters in which the expertise of the Court is greater than that of the Immigration Division, suggesting less deference on this issue.\n\nHaving regard to the pragmatic and functional considerations to which I have adverted, I conclude: (a) the question of the interpretation of the term \"member\" in paragraph 34(1)(f) is reviewable on a standard of reasonableness; and (b) the question of whether age is to be considered under paragraph 34(1)(f) and if so, the manner of doing so is reviewable on a standard of correctness.\n\nApplying the relevant standards of review to the legal questions, should the Court find it necessary to intervene, the Court will either quash the Immigration Division's decision if it finds that Mr. Poshteh could not be a member of a terrorist organization or it will remit the matter to the Immigration Division for redetermination having regard to the proper legal tests. However, should the Court not find the Immigration Division's legal determinations with respect to the term \"member\" and Mr. Poshteh's minor status to be unreasonable or incorrect, respectively, the questions of mixed fact and law, namely the application of the law to the facts by the Immigration Division, should be reviewed on a reasonableness standard. Standard of Review - Decision of the Federal Court", - "current_to": "2005-03-04", + "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-8", + "id": "fca-501244-86", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 25–26", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 127–128", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "The standard of review by this Court of the Federal Court decision is correctness on a question of law and palpable and overriding error on a question of fact or mixed law and fact. (See Housen v. Nikolaisen, [2002] 2 S.C.R. 235 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.) Issue 1: Member - Law\n\nI now turn to whether, without regard for Mr. Poshteh's age, his activities for the MEK could constitute him a member of that organization. If an adult would not be considered a member on the facts applicable to Mr. Poshteh, it will be unnecessary to address the question of age. Only if his activities would have resulted in him being found to be a member if he were an adult at the relevant time, will it be necessary to consider whether his status as a minor at that time requires a different conclusion.", - "current_to": "2005-03-04", + "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", + "current_to": "2021-08-05", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-9", + "id": "fca-501244-87", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "para 27", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 129–131", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", "part": "Federal Court of Appeal", "division": "", - "text": "There is no definition of the term \"member\" in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term \"member\" in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.): [52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.", - "current_to": "2005-03-04", - "last_amended": "", + "text": "From the foregoing, it follows that this appeal should be dismissed as the issues of mixed fact and law raised by the appellant cannot be raised in the context of an appeal under section 68 of the Customs Act. However, even if the appellant had filed an application for judicial review, the same result would obtain as the alleged errors of mixed fact and law raised by the appellant fall well short of the sort of error that might lead to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn this regard, as my colleague notes, the appellant challenges the CITT’s consideration of the practices and procedures of the WCO Committee and of the opinion of an interior designer who testified as a witness. Consideration of these matters cannot be said to be “perverse” and each was rationally connected to the issues before the CITT. The CITT also adequately explained the use it made of such evidence in its reasons. Its consideration of the matters impugned by the appellant accordingly would not give rise to review under paragraph 18.1(4)(d) of the Federal Courts Act.\n\nIn light of the foregoing, I would dismiss this appeal, with costs. “Mary J.L. Gleason” J.A. “I agree. René LeBlanc J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2021-08-05", + "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" }, { - "id": "fca-32333-10", + "id": "fca-466027-1", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 28–30", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 1–3", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "The same considerations apply to paragraph 34(1)(f) of the Immigration Refugee and Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. Subsection 34(2) provides: 34(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. 34(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. Thus, under subsection 34(2), the Minister has the discretion to exclude the individual from the operation of paragraph 34(1)(f).\n\nBased on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term \"member\" under the Act should continue to be interpreted broadly.\n\nNonetheless, Mr. Poshteh says that the Immigration Division erred by determining the question of membership on the basis of the nature and duration of his activities, while failing to consider his level of integration within the organization. He says the key consideration for membership is a significant level of integration within an organization. He submits that adopting significant integration as the test for membership would promote more consistent decision-making by the Immigration Division.", - "current_to": "2005-03-04", + "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-11", + "id": "fca-466027-2", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 31–32", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 4–6", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "I am not persuaded that Mr. Poshteh's significant integration test would achieve the consistency that he says is presently lacking in Immigration Division decisions. A significant integration test would still require an assessment of the facts and a judgment as to whether the degree of integration in any particular case was sufficient to constitute the individual a member. More importantly, a test for membership based on significant integration would not be consistent with the broad interpretation to be given to the term \"member.\"\n\nThe Immigration Division adopted a broad approach to the interpretation of the term \"member.\" It was not unreasonable for it to have done so. Issue 1: Member - Facts", - "current_to": "2005-03-04", + "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-12", + "id": "fca-466027-3", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 33–34", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 7", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "The Immigration Division's factual findings are the following: (a) Mr. Poshteh's involvement with the MEK consisted solely of disseminating propaganda; (b) he disseminated propaganda for approximately two years; (c) at his hearing he referred to himself at one point as a member; (d) his involvement went beyond that of a mere sympathizer or supporter; (e) he shared in the MEK's overriding goal to overthrow the Iranian government; (f) although he was not formally enlisted in the MEK, it was not for lack of trying. He desperately wished to enlist in some formal fashion. He claimed he was denied that permission, but was allowed for a period of two years to engage in an activity for the benefit of the MEK; (g) propaganda is an important part of the MEK. The purpose is partly to educate but also to enlist sympathy and support for the cause. Support could range from funding, to enlistment of new members, to creating a climate where activities, violent or otherwise, could proceed; and (h) the distribution of propaganda twenty-four to forty-eight times over a period of two years was a significant level of activity and was not marginal or minimal.\n\nBased on these findings, the Immigration Division concluded that the functions Mr. Poshteh performed were equal to those of a member of the MEK and that he fulfilled the role of member for purposes of paragraph 34(1)(f) of the Act.", - "current_to": "2005-03-04", + "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-13", + "id": "fca-466027-4", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 35–37", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 8–9", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Poshteh gives a number of reasons why he was not significantly integrated within the MEK. He says he never received initiation, indoctrination or training. He never attended meetings. He did not know where the meetings were held or the hierarchy of the group. He had no decision-making power. He did not create the propaganda. He did not recruit members or raise funds. His only contacts were his father's friend and the individual with whom he distributed the propaganda. He says he was not involved in influential media such as radio, television or newspaper propaganda. In addition, the flyers were not distributed more broadly than in local neighbourhoods and schools. Given these circumstances, Mr. Poshteh says his involvement was limited.\n\nIn any given case, it will always be possible to say that although a number of factors support a membership finding, a number point away from membership. An assessment of these facts is within the expertise of the Immigration Division.\n\nHere, the Immigration Division based its conclusion on what appears to be a thorough assessment of the evidence. It considered what Mr. Poshteh did, the length of his involvement with the MEK, his attempt to become a formal member and the effect of distributing propaganda. It concluded that Mr. Poshteh's activity was not minimal or marginal and was sufficient to constitute membership for purposes of paragraph 34(1)(f).", - "current_to": "2005-03-04", + "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-14", + "id": "fca-466027-5", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 38–40", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 10–12", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Based upon a somewhat probing examination, I cannot say that the reasons of the Immigration Division do not adequately support its conclusion that Mr. Poshteh was a member of the MEK for purposes of paragraph 34(1)(f) (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 48-56). Not finding the Immigration Division's decision to be unreasonable, I conclude that Gibson J. did not err in deferring to that decision. Issue 2: Age - Law\n\nI now turn to the second issue. Mr. Poshteh does not ask for a blanket exemption from paragraph 34(1)(f) for minors. Rather, his argument is that having regard to his status as a minor, he should not be considered to be a member unless he was involved in violent activities or was a leader of the organization.\n\nThere is no express exemption for minors in section 34. To find a blanket exemption for minors would require reading words into paragraph 34(1)(f) that were not put there by Parliament. The Court must take the statute as it finds it. Therefore, I agree with Mr. Poshteh that there is no blanket exemption from paragraph 34(1)(f) for minors.", - "current_to": "2005-03-04", + "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-15", + "id": "fca-466027-6", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 41–42", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 13", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "By contrast, subsection 36(3)(e) of the Act provides that an individual cannot be found to be criminally inadmissible for an offence under the Young Offenders Act. (The Young Offenders Act was repealed on April 1, 2003, and replaced by the Youth Criminal Justice Act, S.C. 2002, c. 1.) Paragraph 36(3)(e) provides: (3) The following provisions govern subsections (1) and (2): . . . (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act. (3) Les dispositions suivantes régissent l'application des paragraphes (1) et (2)_: . . . e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction à la Loi sur les jeunes contrevenants. Essentially, this means that for most offences committed by a minor, the individual will not be found to be criminally inadmissible. There is no similar provision that would provide for a blanket age exemption in section 34.\n\nHowever, I do not say that Parliament's silence on the subject of age in section 34 implies that the individual's status as a minor is irrelevant to the question of membership. An individual's status as a minor is widely recognized in both statute and common law and I see no reason why it should be ignored for purposes of paragraph 34(1)(f). (See R. v. Hill, [1986] 1 S.C.R. 313 at 348-351 per Wilson J. dissenting. The majority reasons are not in conflict with her general comments on this point.)", - "current_to": "2005-03-04", + "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-16", + "id": "fca-466027-7", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 43–44", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 14–15", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Nonetheless, that recognition of an individual's status as a minor does not in all cases require a blanket exemption from application of a law to the minor. That is particularly the case where the status of a minor is recognized by the common law but not by statute. In the case of common law recognition, capacity is often viewed on a continuum on which the presumption of capacity increases with the age of the minor. (In the context of criminal law, see R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1319-1320 per Lamer C.J.; in the context of tort law, see R. v. Hill, supra, per Wilson J. at pages 350-351.)\n\nA statutory blanket exemption or exclusion in respect of minors is often a proxy for individual assessments of matters such as maturity, responsibility or mental capacity to make an informed decision, where such individual assessments are impractical. In the case of voting rights, for example, it has been held that setting the voting age at eighteen is to ensure, as far as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government (see Fitzgerald (Next friend of) v. Alberta, [2003] 3 W.W.R. 752 (Q.B.), aff'd [2004] 6 W.W.R. 416 (C.A.), leave to appeal to S.C.C. refused, 6 January 2005). It would obviously not be possible to conduct such an assessment on an individual basis for voting purposes. A bright-line age test is therefore a practical way to deal with the matter.", - "current_to": "2005-03-04", + "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-17", + "id": "fca-466027-8", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 45–47", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 16–18", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Different considerations apply in respect of paragraph 34(1)(f). Here, the Act expressly provides for individual assessments for admissibility. That is not to say that Parliament could not, as it did in section 36, provide for a blanket age exemption in section 34. But because Parliament did not do so, an individual's status as a minor is simply a further consideration in the individual assessment made under paragraph 34(1)(f).\n\nHaving concluded that, although there is no blanket exemption for minors, an individual's status as a minor is still relevant under paragraph 34(1)(f), the next question is what considerations are to be taken into account.\n\nIt seems to me that in the context of age, relevant considerations in paragraph 34(1)(f) would be matters such as whether the minor has the requisite knowledge or mental capacity to understand the nature and effect of his actions. It is open to the minor to advance those considerations and whatever other arguments support an exemption from paragraph 34(1)(f) on the basis of his status as a minor and to provide evidence in support of those arguments.", - "current_to": "2005-03-04", + "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-18", + "id": "fca-466027-9", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 48–49", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 19–21", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "While a finding of membership in a terrorist organization may be possible for a minor of any age, it would be highly unusual for there to be a finding of membership in the case of a young child, say, under the age of twelve. Although it will depend on the evidence in each case, it would seem self-evident that in the case of such children, the presumption would be that they do not possess the requisite knowledge or mental capacity to understand the nature and effect of their actions. In the case of young children, the age of the child itself would be prima facie evidence of an absence of the requisite knowledge or mental capacity. There would be an obligation on the Immigration Division to carefully consider the level of understanding of such a child.\n\nIndeed, at common law there was an irrebuttable presumption that a child under the age of seven was incapable of possessing criminal intent; once a child reached the age of fourteen, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. (See R. v. Chaulk, supra, at page 1319.) Today, under section 13 of the Criminal Code, R.S.C. 1985, c. C-46, a child shall not be convicted of an offence in respect of an act or omission on his part while under the age of twelve years. Section 13 provides: 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. 13. Nul ne peut être déclaré coupable d'une infraction à l'égard d'un acte ou d'une omission de sa part lorsqu'il était âgé de moins de douze ans.", - "current_to": "2005-03-04", + "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-19", + "id": "fca-466027-10", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 50–52", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 22–25", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Over the age of eleven, minors are held responsible for their criminal actions. The Youth Criminal Justice Act provides for a unique system of procedures, courts and dispositions from that provided in the Criminal Code, but it does not provide an exemption from criminal responsibility for a minor's actions.\n\nFor purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to eighteen years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.\n\nI have said that it is open to the minor to raise whatever factors he considers relevant in the particular case. For example, issues of duress or coercion may be relevant. However, these issues do not arise in this case since it was Mr. Poshteh who approached his father's friend, asking to become a member of the MEK.", - "current_to": "2005-03-04", + "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-20", + "id": "fca-466027-11", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 53–55", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 26–27", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "I would agree with Mr. Poshteh that it would be very difficult for a minor to argue that he should not be found to be a member if he had been directly involved in violent activities or had held a leadership role in the terrorist organization. However, lesser involvement may still result in a finding of membership. It is not necessarily the nature of the involvement with the terrorist organization that will determine the issue, although those considerations may be relevant. Rather, matters such as knowledge or mental capacity are the types of considerations to be taken into account in deciding whether a determination of membership in a terrorist organization in the case of a minor is to be different than in the case of an adult.\n\nThe Immigration Division's reasons demonstrate that it dealt with Mr. Poshteh's arguments based on age and it was correct in so doing. Even though Mr. Poshteh did not make explicit lack of knowledge or mental capacity arguments, the Immigration Division's reasons do inferentially deal with his knowledge and mental capacity. Issue 2: Age - Facts\n\nIn acknowledging and dealing with Mr. Poshteh's arguments based on age, the Immigration Division concluded that: 1. Mr. Poshteh was not ignorant of the violent activities of the MEK; 2. he became involved with the MEK of his own volition; 3. his involvement may have been initially motivated by passion but it continued for two years; and 4. he made his own decisions, even against the advice of adults.", - "current_to": "2005-03-04", + "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-21", + "id": "fca-466027-12", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 56–57", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 28–29", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was seventeen years and eleven months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization. The Best Interests of the Child\n\nMr. Poshteh and the intervener argue that in the case of a minor, the Immigration Division must take into account the best interests of the child. Indeed, paragraph 3(3)(f) requires that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Paragraph 3(3)(f) provides: 3(3) This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. 3(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_: . . . f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.", - "current_to": "2005-03-04", + "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-22", + "id": "fca-466027-13", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 58–60", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 30–32", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "One such instrument is the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September 1990). Article 3 requires that in all actions of courts of law and administrative authorities, the best interests of the child shall be a primary consideration. Article 3.1 provides: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary concern.\n\nI do not think that the Convention on the Rights of the Child is relevant in this case. For purposes of the Convention, the action in this case is the proceeding and decision of the Immigration Division. However, at the time the matter was considered by the Immigration Division, Mr. Poshteh was no longer a minor. He was eighteen when he arrived in Canada. As I read the Convention, it is concerned with the interests of children while they are children. It does not purport to confer rights on adults.\n\nIt is important in this case to distinguish between considerations such as whether an individual has the knowledge or mental capacity to understand the nature and effect of his actions, which are relevant, and the \"best interests of the child\" considerations under the Convention, which are not relevant. Mr. Poshteh was an adult when he invoked and became subject to Canada's immigration laws and procedures and therefore he cannot rely on the Convention. Charter Rights", - "current_to": "2005-03-04", + "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-23", + "id": "fca-466027-14", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 61–62", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 33–35", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "The Immigration Division found that Mr. Poshteh's section 7 Charter rights were not engaged. In his factum, Mr. Poshteh says that he \"... does not seek to challenge that finding in this proceeding ...\". However, he argues that even though his life, liberty and security of the person rights are not engaged, Parliament's intention is that the Act is to be construed in a manner consistent with principles of fundamental justice. Later in his factum, Mr. Poshteh submits that the Charter and other documents \"are unanimous on the principle that the liability of a minor cannot simply mirror that of an adult but rather must provide special treatment.\"\n\nThe principles of fundamental justice in section 7 of the Charter are not independent self-standing notions. They are to be considered only when it is first demonstrated that an individual is being deprived of the right to life, liberty or security of the person. It is the deprivation that must be in accordance with the principles of fundamental justice. (See, for example, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.)", - "current_to": "2005-03-04", + "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-24", + "id": "fca-466027-15", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 63–64", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 36", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Here, all that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to the effect that a finding of inadmissibility does not engage an individual's section 7 Charter rights. (See, for example, Barrera v. Canada (MCI) (1992), 99 D.L.R. (4th) 264 (F.C.A.).) A number of proceedings may yet take place before he reaches the stage at which his deportation from Canada may occur. For example, Mr. Poshteh may invoke subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, fundamental justice in section 7 of the Charter is not of application in the determination to be made under paragraph 34(1)(f) of the Act. CONCLUSION\n\nI would answer the certified question in the following manner: (a) section 7 of the Charter is not engaged in the determination to be made by the Immigration Division under paragraph 34(1)(f) of the Act; (b) the Convention on the Rights of the Child does not apply when the proceedings and decision involving an individual take place when the individual is no longer a minor; (c) an individual's status as a minor is relevant and there may be a distinction between a minor and an adult in the determination of whether the individual is a member of a terrorist organization under paragraph 34(1)(f) of the Act if the minor provides evidence to support such a distinction; and (d) in the present case, Mr. Poshteh's age was properly considered by the Immigration Division and it was open to the Immigration Division to determine that he was a member of a terrorist organization for purposes of paragraph 34(1)(f) of the Act.", - "current_to": "2005-03-04", + "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-32333-25", + "id": "fca-466027-16", "doc_type": "caselaw", - "act_code": "2005 FCA 85", - "act_short": "Poshteh", - "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", - "marginal_note": "paras 65–66", - "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 37", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "The Immigration Division did not make unreasonable findings in concluding that Mr. Poshteh was inadmissible under paragraph 34(1)(f) of the Act. There was no error of law or palpable and overriding error of fact in the reasons of Gibson J.\n\nThe appeal should be dismissed with costs. \"Marshall Rothstein\" J.A. \"I agree Marc Noël, J.A.\" \"I agree B. Malone, J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2005-03-04", + "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-1", + "id": "fca-466027-17", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 1–5", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 38", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Jeremy Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time in the military, they developed an objection to the war in Iraq, resulting in their belief that it is illegal and immoral. After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they made claims for refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (the “Board”) considered the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these Reasons as the “appellants”) for refugee status and held that the appellants are not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Board therefore concluded that the appellants are not entitled to stay in Canada as refugees.\n\nIn the Federal Court, Mactavish J. dismissed applications for judicial review by the appellants and certified a question which appears later in these Reasons (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421).\n\nThe appellants now appeal to this Court. However, for the reasons that follow, I see no reason to depart from the conclusions of the Board and Mactavish J. that the appellants are not entitled to refugee status. Accordingly, I would dismiss the appeals.\n\nThese Reasons are given in respect of both appeals (A-182-06 and A-185-06). A copy will be placed in the file of each appeal. FACTS IN THE HINZMAN APPEAL", - "current_to": "2007-04-30", + "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-2", + "id": "fca-466027-18", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 6–9", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 39", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "In late 2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr. Hinzman’s decision to join the military was motivated both by the fact that the military would provide him with financial assistance that would allow him to attend university upon completion of his term of enlistment and by his belief that the Army had a higher or noble purpose of doing good things. He chose specifically to become an infantryman because he wanted “to experience the essence of the Army.”\n\nPrior to enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless, at the outset of his military service, it appears he did not have any reservations about bearing arms or otherwise fulfilling his duties as a soldier.\n\nHowever, during basic training, Mr. Hinzman testified that he underwent a process of desentization intended to dehumanize the enemy that caused him to start to question his involvement with the military.\n\nAfter completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr. Hinzman continued to question his impending involvement in combat. He testified before the Board that he had been “kind of living a double life,” outwardly indicating that he was a “soldier’s soldier” but inwardly developing concerns about killing. Ultimately, he concluded that he could not kill, and that all violence does is perpetuate more violence.", - "current_to": "2007-04-30", + "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-3", + "id": "fca-466027-19", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 10–11", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 40–41", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Consequently, Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as a conscientious objector, in accordance with Army Regulation 600-43. Although he indicated on his application that he was not a member of a religious sect or organization, he noted that over the past few years, he had been discovering a world-view framed by the teachings of Buddhism, which led to his decision that he was unable to kill. He also stated in the application that in January 2002, he and his wife had begun attending meetings of The Religious Society of Friends, or Quakers, a church espousing pacifism. In accordance with the military’s conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base.\n\nFor reasons that are unclear, Mr. Hinzman’s first conscientious objector application was not dealt with on its merits. Accordingly, he submitted a new application in October 2002, after he had learned that his unit would be deployed to Afghanistan. Mr. Hinzman believed that the United States had a legitimate basis for going into Afghanistan because he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, the terrorist organization responsible for the September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to kitchen duties because of his pending application for conscientious objector status.", - "current_to": "2007-04-30", + "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-4", + "id": "fca-466027-20", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 12–13", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 42–43", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "A hearing was held in respect of Mr. Hinzman’s conscientious objector application while he was in Afghanistan, on April 2, 2003. Although First Lieutenant Dennis Fitzgerald, who was appointed investigating officer, was satisfied that Mr. Hinzman sincerely opposes war on a philosophical, societal and intellectual level, he concluded that Mr. Hinzman did not meet the definition of conscientious objector, as outlined in Army Regulation 600-43, because Mr. Hinzman had indicated that while he was unable to conduct offensive operations in combat, he would conduct defensive and peacekeeping operations. The First Lieutenant therefore denied Mr. Hinzman’s conscientious objector application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using his conscientious objector application to get out of the infantry, a conclusion based, in part, on the negative and apparently erroneous, inference drawn from the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious objector status until after he learned he would be deployed to Afghanistan.\n\nAlthough Mr. Hinzman has complained about his inability to call witnesses at the hearing because the hearing was held in Afghanistan and the witnesses he would have called were in the United States, he did not request an adjournment of the hearing, as he was permitted to do under Army Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt there would be no point in pursuing the matter.", - "current_to": "2007-04-30", + "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-5", + "id": "fca-466027-21", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 14–18", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 44–46", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined, however, not to fight in Iraq because he believed the United States military action there to be illegal and immoral. Consequently, Mr. Hinzman decided to desert.\n\nMr. Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee status approximately three weeks later. His refugee claim was based on his beliefs described above.\n\nMr. Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and likely receive a sentence of one to five years in a military prison. FACTS IN THE HUGHEY APPEAL\n\nBrandon Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17 years, while still a student in high school. He reported for duty on July 9, 2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey testified that he joined the military to access financial assistance that would enable him to go to college and because he believed that some things were worth fighting for.\n\nMr. Hughey learned of the war in Iraq while he was in basic training. Although he originally assumed the war in Iraq could be justified, his opinion changed over time, so that he too believed that the war in Iraq was illegal.", - "current_to": "2007-04-30", + "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-6", + "id": "fca-466027-22", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 19–21", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 47–49", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hughey testified that while on approved leave from his unit from November 20, 2003 to December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned staff sergeant that he did not think the military action in Iraq was morally right and asked the staff sergeant for assistance in seeking a discharge from the military. Mr. Hughey was told to stop thinking so much, that he had signed a contract, and that there was nothing that the superior officer was going to do to help accommodate his request for a discharge. A similar appeal by Mr. Hughey to another superior officer on a later occasion elicited a similar response.\n\nThrough research on the internet, Mr. Hughey learned of an anti-war activist named Carl Rising-Moore who was willing to help soldiers escape the military. After Mr. Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr. Hughey get to Canada and explained that Mr. Hughey’s only option would be to apply for refugee status on his arrival.\n\nWhile Mr. Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he would be deployed to Iraq. He therefore left his base and arrived in Canada with Mr. Rising-Moore on March 5, 2004. Mr. Hughey applied for refugee protection approximately one month later, on the basis that he had a well-founded fear of persecution in the United States because of his political opinion.", - "current_to": "2007-04-30", + "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-7", + "id": "fca-466027-23", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 22–24", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 50–51", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "In his testimony, Mr. Hughey stated his belief that if returned to the United States he would face one to five years in prison and that he might face a more severe sentence because the Army knew through interviews in Canada that he had sought asylum in another country. He also testified that in basic training his drill sergeants told the soldiers that they could be put to death for desertion. DECISIONS OF THE BOARD 1) Interlocutory Decision as to Admissibility of Evidence\n\nMr. Hinzman brought a preliminary motion before the Board to adduce evidence to establish that the war in Iraq is illegal under international law. He maintained that this evidence of illegality was relevant to his claim because it would bring him within paragraph 171 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (the “Handbook”), a document treated as a “highly persuasive authority” in an assessment of whether an individual qualifies for refugee status: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at page 659.\n\nParagraph 171 of the Handbook provides as follows: 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.", - "current_to": "2007-04-30", + "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-8", + "id": "fca-466027-24", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 25–28", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 52", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hinzman argued before the Board that an illegal war constitutes a military action “condemned by the international community as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook, such that any punishment for deserting an illegal war would constitute persecution.\n\nThe Board disagreed. In its view, when paragraph 171 of the Handbook speaks of a military action contrary to basic rules of human conduct, it refers to specific acts the soldier would be expected to perform “on the ground,” not to the legality of the conflict as a whole. Accordingly, the Board concluded the illegality of the war in Iraq was not relevant to Mr. Hinzman’s claims and therefore refused to admit evidence directed to the issue.\n\nThe appellants are represented by the same counsel. Moreover, Mr. Hughey’s case was heard by the same Board member who had previously adjudicated the Hinzman case. In light of the Board’s preliminary evidentiary ruling in the Hinzman case, counsel for the appellants did not adduce evidence as to the illegality of the war in Iraq in the Hughey case. 2) Decisions as to the Merits of the Refugee Claims\n\nAlthough the Board issued separate Reasons in the Hinzman and Hughey cases, the claims in each case were dismissed on substantially the same basis. Therefore, I summarize the key holdings of the Board collectively.", - "current_to": "2007-04-30", + "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2020-03-19", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" }, { - "id": "fca-35576-9", + "id": "fca-419470-1", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 29–30", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 1–3", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", "part": "Federal Court of Appeal", "division": "", - "text": "The Board first identified that there is a presumption in refugee law that states are capable of protecting their citizens. Likewise, the Board noted that there is a presumption that ordinary laws of general application, such as the U.S. laws relating to desertion, are not persecutory. After a detailed analysis, the Board concluded that the appellants had failed to rebut these presumptions of state protection and neutrality of laws and as such, their refugee claims could not succeed.\n\nThe Board also considered the appellants’ contention that the U.S. military action in Iraq involves serious violations of international humanitarian law which are condemned by the international community as contrary to basic rules of human conduct. The appellants argued that, because of these violations of international humanitarian law, paragraph 171 of the Handbook directs that any punishment for their refusal to participate in such conduct would amount to persecution. The Board rejected this argument after an extensive review of the evidence adduced to establish the “on the ground” conduct of the United States military in Iraq. According to the Board, the appellants failed to adduce sufficient evidence to show that if deployed to Iraq they would personally have been required to engage in conduct condemned by the international community as contrary to basic rules of human conduct.", - "current_to": "2007-04-30", + "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", + "current_to": "2019-08-07", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" }, { - "id": "fca-35576-10", + "id": "fca-419470-2", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 4", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung purchased the coins in the United States at a cost of $5,700 USD, although their denomination or face value is $220 USD. Mr. Hociung had been traveling to the United States for the day only (same day traveler); he was not questioned about the amount of “cash” or “currency” in his possession by the CBSA officer and the seizure did not relate to a failure to declare the coins under the Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, S.C. c. 17 (the Proceeds of Crime Act) or the Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 (the Reporting Regulations). The coins were discovered after Mr. Hociung was asked to present himself to the CBSA’s office for inspection after he declared having bought two new tires for his car in the United States (declared value $500). There is no indication in the record that he was asked to pay any duties or taxes on the tires.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-3", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 5–6", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung contested the seizure and requested a decision from the Minister of Public Safety and Emergency Preparedness (the Minister) on the issue of whether the Customs Act had been contravened. Pursuant to section 131 of the Customs Act, the Minister’s delegate found that there had indeed been a contravention of section 12 of the Customs Act, but as he was entitled to do pursuant to section 133 of the Customs Act, he reduced the penalty for the release of the seized coins from $1,606.97 to $321.39 (section 133 of the Customs Act). He dismissed Mr. Hociung’s argument that the coins were “currency” as opposed to “goods” and therefore he did not need to declare them under the Customs Act. It is in this context that Mr. Hociung contested the CBSA’s interpretation of the word “currency” in the Proceeds of Crime Act that contributed in his view to a misapplication of the Customs Act and the Proceeds of Crime Act, as well as the relevant regulations adopted under the latter statute.\n\nThe denomination value of the coins ($220 USD) if used as legal tender in the United States was less than $10,000 CAD. Even if held to be currency within the meaning of the Proceeds of Crime Act, Mr. Hociung was not required to declare the coins under that statute as their value was below the limit set out in the Reporting Regulations. There is no dispute about this.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-4", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 7–8", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister’s delegate issued his decision on May 28, 2015. On August 28, 2015, Mr. Hociung filed his action before the Federal Court. Although his action includes an appeal pursuant to section 135 of the Customs Act, it does include other claims and seeks additional relief, including damages based on alleged torts committed during the interaction between CBSA employees and Mr. Hociung, such as threats of violence and fraudulent misrepresentations.\n\nIn his statement of claim, Mr. Hociung, a self-represented litigant, describes the seizure and the alleged misinterpretation of the Customs Act, the Proceeds of Crime Act and the Currency Act, R.S.C., 1985, c. C-52 (the Currency Act) by the CBSA as fraudulent and designed to (i) aid crime and terrorism in Canada, and (ii) make illegal profits from the taxation of “currency” as “goods”. He alleges that various employees involved in the seizure and his contestation of it are guilty of criminal conduct. Among the other relief sought are damages and various declarations, such as a declaration that Canadian and foreign precious metal coins fall within certain provisions of the Proceeds of Crime Act as opposed to the Customs Act. Mr. Hociung also seeks an order directing the Prime Minister to create an oversight body to ensure the lawful implementation of the Proceeds of Crime Act, as well as an order directing the refund of all taxes, duties, and any fines obtained by the CBSA in relation to shipments of gold and silver coins, foreign and domestic, since the Proceeds of Crime Act was enacted.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-5", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 9", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his motion to amend his statement of claim (the subject of the appeal in file A-101-18), Mr. Hociung seeks to add two defendants, including Her Majesty the Queen (vicarious liability), as well as claims against other employees of the CBSA involved in the process leading to the Minister’s final decision (see e.g., paragraphs 3(a)(4), 3(a)(4)(g), 5 and 6 of the proposed amended statement of claim). He also wishes to include various factual details, particularly with respect to the so-called “money laundering scheme run by the CBSA” (such as paragraphs 9, 10 and 11 of the proposed amended statement of claim), references to internal bulletins, and previous instances involving the alleged “misapplication” of the Proceeds of Crime Act and other statutes by the CBSA, of which he became aware after filing his action. Mr. Hociung also sought to amend his statement of claim to refer to section 469 of the Criminal Code, R.S.C. 1985, c. C-46, which grants the power to every court of criminal jurisdiction to deal with certain types of offences, and to include additional relief such as an order directing the Minister of Public Safety to dismantle the present CBSA and to implement a new Agency that conforms to the requirements of the Canada Border Services Agency Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-6", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 10–11", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In August 2016, after filing a brief statement of defence, the respondent filed a motion in writing seeking an order striking out the statement of claim in its entirety without leave to amend. In her order dismissing the said motion, Prothonotary Milczynski made it clear that the respondent had not relied on an alternative approach of challenging each type of claim and relief sought so that at least some portions of the statement of claim could be struck. Having found that it was not clear that the appeal pursuant to section 135 of the Customs Act was without merit and that Mr. Hociung had to institute a separate action for his other causes of action, the Prothonotary dismissed the motion. That said, she expressly noted that the respondent would not be prevented from seeking an order striking out portions of the statement of claim at a later stage, once Mr. Hociung filed the motion to amend he alluded to in his representations before her.\n\nOn February 20, 2017, Mr. Hociung filed a motion in writing to amend his statement of claim. On March 1, 2017, the respondent filed the motion for summary judgment that resulted in the decision under appeal in this file. Despite the Prothonotary’s comments, once again, rather than relying on arguments targeted at each type of claim and relief sought, the respondent asked for the dismissal of the entire action, even in its amended form based on what the respondent considered the only genuine issues. These consisted of two questions of law: (i) whether, in an action brought under section 135 of the Customs Act, a plaintiff may claim damages or seek mandamus, and (ii) whether collector coins are “currency” or “goods” for the purpose of the Customs Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-7", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 12–14", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is not disputed that in an appeal pursuant to section 135 of the Customs Act, a plaintiff cannot contest decisions such as the imposition of a penalty made under other provisions of the Customs Act, for generally such decisions must be contested by an application for judicial review to be filed within 30 days of the decision, rather than an ordinary action filed within the 90 days from the notification of the ministerial decision (see for example Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724; Starway v. Canada (Public Safety and Emergency Preparedness), 2010 FC 1208) and very recently Chen v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 170 at para. 9).\n\nRelying on the jurisprudence referred to in the Federal Court��s reasons (the Reasons) at paragraphs 27 to 29, the respondent sought to exclude any other claims or relief from the statement of claim on the basis that these were also outside the scope of section 135. Presumably, rather than dealing with the numerous legal issues arising from the nature of those allegations including jurisdiction and standing, this offered an easier way to dispose of the numerous claims and relief sought by Mr. Hociung.\n\nObviously, unless the respondent succeeded on the first question of law, the answer as to the second question of whether Mr. Hociung’s collector coins were “goods” or “currency” could not warrant the dismissal of the statement of claim in its entirety (see Reasons at paras. 16 to 20). Indeed, as acknowledged by the respondent’s counsel at the hearing before us, unless a joinder of causes of action is precluded, the answer to the second question clearly could not justify the dismissal of the claim for damages based on threats of violence by a CBSA officer.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-8", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 15–17", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "I ought to note that there are obvious difficulties arising when a party is self-represented and may lack legal knowledge and some or all of his claims may be without merit. Despite this reality, defendant’s counsel has the duty to put before the court a motion including all of the appropriate grounds and authorities that will enable the Court to efficiently strike out or dismiss a claim on the basis that it has no merit. Efficiency and proportionality do not justify undue legal shortcuts.\n\nThe Federal Court dismissed the action after reformulating the first question as follows: “Is an action commenced pursuant to section 135 of the Customs Act limited to a determination of whether there has been a contravention of the Customs Act?” It found that anything other than whether or not Mr. Hociung had contravened section 12 of the Customs Act was beyond the scope of a section 135 action and must be pursued in other proceedings (Reasons at paras. 25 to 32). Except for a brief mention at paragraph 26 of the Reasons that it had not been persuaded by Mr. Hociung that section 135 allows for a joinder of various causes of action, the Federal Court did not explain why it excluded the application of Rules 101and 106 of the Federal Courts Rules, S.O.R./98-106 (the Rules), from the ambit of subsection 135(2) of the Customs Act (See paragraph 21 below).\n\nIn respect of the second question, it held that the collector coins at issue are “goods” within the meaning of section 12 of the Customs Act and had to be declared. Thus, Mr. Hociung had contravened the Customs Act and his collector coins could be seized on that basis.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-9", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 18–20", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Furthermore, the Federal Court found that even if in its view these type of coins may also have to be declared when their denomination value was over the limit of $10,000 CAD or its equivalent in foreign currency (section 12 of the Proceeds of Crime Act and section 2 of the Reporting Regulations), the fact that these coins are also “goods” under the Customs Act does not create a true conflict between the relevant legislative provisions (Reasons at paras. 68 to 72).\n\nImportantly, the Federal Court also noted that the question of whether duties were payable on these “goods” was not the issue in the action, as the obligation to declare under section 12 of the Customs Act was not limited to “goods” on which duties are actually payable (Reasons at paras. 63 to 66).\n\nThis appeal raises the following main issues: Did the Federal Court make a reviewable error in answering the two questions raised in the respondent’s motion? Is there a reasonable apprehension of bias as alleged by Mr. Hociung?", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-10", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 21–22", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 12(1) and section 135 of the Customs Act read as follows: 12 (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. 12 (1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions réglementaires, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. 135 (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. 135 (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur. Ordinary action Action ordinaire (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions.\n\nRules 101 and 106 as well as some of the other relevant provisions referred to herein are reproduced in Annex 1.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-11", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 23", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well established that on a motion for summary judgment, the standards of review set out in Housen v. Nikolaisen, 2002 SCC 33, apply (Hryniak v. Mauldin, 2014 SCC 7 at paras. 81 and 84). Thus, the standard of correctness applies to questions of law, while questions of fact and of mixed fact and law are reviewed on the standard of palpable and overriding error.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-12", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 24", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "As mentioned earlier, Mr. Hociung’s main argument is that Rule 101(1) allows him to request relief in his action in respect of more than one claim. Pursuant to Rule 101(3), not all parties to the action need have an interest in all relief claimed in the said proceeding. Mr. Hociung submits that if Parliament intended to exclude the application of this Rule to actions instituted pursuant to section 135 of the Customs Act, it would have used explicit language similar to the one used in subsection 81.28(3) of the Excise Tax Act, R.S.C., 1985, c. E-15 (the Excise Tax Act), which deals with actions brought under that section. The relevant portion of the provision reads as follows: (3) An appeal to the Federal Court under this Part is deemed to be an action in the Federal Court to which the Federal Courts Act and the rules made under that Act applicable to an ordinary action apply, except as varied by special rules made in respect of such appeals and except that (3) Un appel à la Cour fédérale en vertu de la présente partie est réputé être une action devant celle-ci à laquelle la Loi sur les Cours fédérales et les règles établies conformément à cette loi s’appliquent comme pour une action ordinaire, sauf dans la mesure où l’appel est modifié par des règles spéciales établies à l’égard de tels appels, sauf que : (a) the rules concerning joinder of parties and causes of action do not apply except to permit the joinder of appeals under this Part; a) les règles concernant la jonction d’instances et de causes d’action ne s’appliquent pas, sauf pour permettre la jonction d’appels en application de la présente partie; […] […]", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-13", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 25–27", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 135(2) of the Customs Act clearly indicates that the Rules apply to an action instituted under subsection 135(1), except as varied by special rules made in respect of such actions. The Customs Act does contain some specific provisions such as its subsection 106(3), which deals with stays of actions and other proceedings that could be viewed as special rules within the meaning of subsection 135(2). However, the respondent did not direct us to any provisions of the Customs Act setting a special rule that could preclude the application of Rules 101 and 106. I have not found any.\n\nThe case law holding that in an action pursuant to section 135, a party cannot seek judicial review of decisions other than whether there has been a contravention to the Customs Act is of no help here. None of the decisions relied upon by the Federal Court and the respondent deal with the issue before us or rely on reasoning that could be relevant to the interpretation of the current issue.\n\nThe Rules are very liberal in their treatment of joinders of parties and causes of action. However, this right is subject to the overriding discretion and power of the Court to sever claims as provided by Rule 106. Before severing claims pursuant to that provision, the Court must carefully weigh the prejudice to the plaintiff, if any. Severing claims pursuant to Rule 106 is not the same as dismissing an action for summary judgment. It is a procedural order that is usually followed by appropriate directions detailing how to sever the claims. Certainly, it should be done in a manner that would not preclude a party from pursuing an otherwise valid claim because it would now be time-barred.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-14", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 28–31", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the same manner that the respondent’s motion, which refers to Rule 221 as opposed to Rule 215, was considered a proper motion for summary judgment by the Federal Court, despite this error, Mr. Hociung’s action must be considered for what it is – an action where he has included more than one cause of action and where he seeks more than an appeal of the Minister’s decision under section 135 of the Customs Act.\n\nBecause the Federal Court erred in its conclusion in respect of this first question, it could not simply dismiss the action in its entirety on the sole basis that there had been a contravention to the Customs Act without examining if and how all the causes of action and relief sought were affected by such determination.\n\nI will comment further on what order could be granted on this motion and in this appeal in section V of these reasons after reviewing whether the Federal Court erred in concluding that the coins at issue were “goods” that had to be declared under subsection 12(1) of the Customs Act.\n\nBefore us, Mr. Hociung argues that as the purpose of the Customs Act is to collect custom duties, the obligations set out in section 12 of the Customs Act can only apply to goods on which duties are payable. Even if his coins were “goods”, a conclusion that he also contests, because they were either exempted from taxes or subject to a zero custom duty rate, there was no obligation to report them. I will deal with this argument first. If I find that the obligation to report applies regardless of whether duties are payable, I will review whether as argued by Mr. Hociung, his coins fall outside of the ambit of “goods” as this word is used in section 12.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-15", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 32–34", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having considered the wording of section 12 in its context, harmoniously with the purpose and object of the scheme of the Customs Act and of this particular provision, I agree with the Federal Court that the obligation to declare is distinct from the obligation to pay duties which is dealt with under the title “Duties” starting at section 17 of the Customs Act. The obligation to report is not limited to goods that attract the payment of duties or other taxes.\n\nThere is nothing in the ordinary meaning of the wording of subsection 12(1) that would justify such a limitation.\n\nWhen one considers the wording of subsection 12(1) in the context of section 12 as a whole, subsection 12(7) becomes relevant. It provides that subject to three cumulative conditions, goods described in tariff item 9813.00.00 or 9814.00.00 of the List of Tariff Provisions set out in the schedule to the Customs Tariff, S.C. 1997, c. 36 may not be seized as forfeit by reason only that they were not reported under subsection 12(1). It is telling that “goods” that fall within the description of the aforementioned tariff items will only be exempted from such seizure if “their importation is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any act of Parliament, other than this act or the Customs Tariff.” This is so, even if those goods are not charged with duties (see text of this provision in Annex 1).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-16", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 35–39", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, I cannot agree that the interpretation suggested by Mr. Hociung is mandated by the main purpose of the Customs Act. The officers of the CBSA are the persons charged with determining whether or not duties are payable and whether or not goods can be imported into Canada without any restrictions under other statutes. They cannot fulfill their statutory responsibilities unless goods are reported to them. To claim the benefit on an exemption or a zero rate of duty, one must first report the goods.\n\nSection 13 of the Customs Act also creates another obligation quite distinct from the payment of duties. It is an obligation to answer questions about the goods imported and to present those goods for inspection to an officer of CBSA when required to do so. This obligation arises whether or not duties or other taxes are due.\n\nThen, the Customs Act provides at section 18 who is liable to pay the duties as defined in section 2(1) of the Customs Act (see also The Excise Tax Act, section 212 which refers to persons liable under the Customs Act to pay duties on imported goods confirming that such an obligation arises from the provisions of the Customs Act itself).\n\nThere is no ambiguity, an exemption from the payment of taxes under the Excise Tax Act, or a zero custom duty rate in the Customs Tariff is not an exemption to report under subsection 12(1) of the Customs Act.\n\nIt appears from the case synopsis (Appeal Book, Volume 4 at page 655 and 658) that in the CBSA’s view, subsection 12(7) of the Customs Act did not apply to Mr. Hociung’s coins, which were imported for the first time into Canada. Mr. Hociung did not contest this particular finding. From my review of the description of the tariff items referred to in that provision, it is evident that he indeed had no basis to do so.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-17", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 40–43", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having determined that the obligation to report or declare all goods imported in Canada is not limited to “goods” which are subject to the payment of duties or other taxes, it is clear from the wording of the motion for summary judgment and the respondent’s written representations that the only other question that had to be determined is whether the actual coins seized were “goods” within the meaning of section 12 of the Customs Act.\n\nThere is no need, and it would be unwise for this Court to attempt to give an exhaustive definition of the word “goods”, considering the Customs Act does not contain such an exhaustive definition. Indeed at section 2, it simply states: goods, for greater certainty, includes conveyances, animals and any document in any form; (marchandises) marchandises Leur sont assimilés, selon le contexte, les moyens de transport et les animaux, ainsi que tout document, quel que soit son support. (goods)\n\nThe word “goods” is intended to be used in the broadest sense possible considering that in its ordinary meaning; it would not usually be understood to include “any document in any form”.\n\nNeither party relied on any case law dealing with the ambit of section 12 of the Customs Act or on the legislative evolution of that section. However, Mr. Hociung and the respondent have referred to several statutes, including the Customs Tariff, the Excise Tax Act, the Proceeds of Crime Act, the Currency Act, the Royal Mint Act, R.S.C., 1985, c. R-9 and related regulations. Although I have considered them, I need not refer to all of them for I find that the Customs Tariff provides the most useful indication of the legislator’s intention as to whether coins that have legal tender such as those under consideration are included in the word “goods”.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-18", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 44–45", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Pursuant to section 4 of the Customs Tariff: Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe.\n\nNothing in the Customs Tariff provides otherwise in respect of the word “goods”. It is quite clear when one reads, for example, the definition of “Tariff Item” which basically is a description of “goods”, and section 10 of the Customs Tariff (See Annex 1) which deals with the classification of “goods” in the List of Tariff Provisions, that generally something listed under a Tariff item is within the ambit of the word “goods” in the Customs Act, particularly as used in section 12.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-19", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 46", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "As explained in Canada (Attorney General) v. Igloo Vikski Inc., 2016 2 S.C.R. 80 (Igloo Vikski), the Customs Tariff “implements Canada’s obligation as a party to the International Convention Governing the Harmonized Commodity Description and Coding System…The Convention governs the Harmonized Commodity Description and Coding System (The “Harmonized System”) by which approximately 5,000 commodity groups of imported goods are classified” (Igloo Vikski at para. 3) (my emphasis). This system was developed to foster predictability and stability in classification practices internationally. “The Harmonized System uses an eight-digit classification system for tariff classifications, which is incorporated into the Schedule to the Customs Tariff” (Igloo Vikski at para. 5). Rather than using the example (Live Animals; Animal Products) used in Igloo Vikski, I will refer to some classification items related to what one would ordinarily consider “money” or “currency” such as issued banknotes that are legal tender (Tariff item No. 4907.00.00.12, see Annex 1), coins (Tariff item No. 71.18) including gold coins that are legal tender (Tariff item No. 7118.90.00.10 – see Annex 1), and silver or other metal coins (Tariff item No. 7118.90.00.99). There are other relevant Tariff items, but my point here is that the words “money” and “currency” are not used in the Customs Tariff or in the Customs Act except when a sum of money needs to be paid or value is considered (see for example sections 55, 132 and 133 of the Customs Act). Indeed the Harmonized System is a much more precise classification for imported goods. It is therefore not particularly useful to look at various statutory definitions of “money” or “currency” to construe section 12 of the Customs Act.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-20", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 46–49", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is also unnecessary to examine whether coins could be “financial instruments” under the Excise Tax Act.\n\nHowever, in light of Mr. Hociung’s argument that it would be contradictory to include anything falling within the definition of “currency” under the Proceeds of Crime Act in the definition of “goods” under the Customs Act, I must agree with the Federal Court that the interpretation of the Proceeds of Crime Act it adopted, even if it was not required in my view to do so to answer the question raised in the motion before it, does not result in a conflict between the Proceeds of Crime Act and the Customs Act. Those two statutes can both be applied without contradiction or conflict. The fact that under the Proceeds of Crime Act the obligation to report is more limited – it only applies to currency and monetary instruments over the limit set out in the Reporting Regulations, cannot justify restricting the proper interpretation of section 12 of the Customs Act which Parliament clearly did not see fit to amend when it adopted the Proceeds of Crime Act in 2000.\n\nI therefore conclude that the Federal Court did not err in law when it concluded that the coins were “goods” subject to the obligation to declare provided for in section 12 of the Customs Act.\n\nAs mentioned, to determine this appeal, it is not necessary for this Court to deal with the issue of whether or not the subject coins could fall within the definition of “currency” of the Proceeds of Crime Act in other cases. That said, I note that the respondent did not challenge the findings of the Federal Court in that respect, particularly those found at paragraphs 35 and 53 of the reasons.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-21", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 50–53", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung alleges that the Federal Court judge was biased against him. He points specifically to paragraph 16 of the Reasons where the Federal Court states “the plaintiff does not dispute that the issues identified by the defendant are genuine issues. However, the plaintiff submits that there are additional issues raised in the statement of claim to be addressed in the course of the action. I disagree.”\n\nMr. Hociung also indicates that bias can be inferred from the fact that the Federal Court relied on “evidence” that was not relied upon by the parties in paragraphs 58 and 60 of the Reasons. At paragraph 58 of the Reasons, the Federal Court refers to the definition of “goods” at subsection 2(1) of the Customs Act and at paragraph 60 to section 123 of the Excise Tax Act where the word “money” is defined.\n\nThe applicable standard here is a reasonable apprehension of bias (Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369 at page 394). The apprehension must be a reasonable one and the test is: what would an informed person, viewing the matter realistically and practically – in having thought the matter through – conclude. This is a difficult test to meet. There is a strong presumption that judges are performing their duties in an unbiased way, and cogent evidence must be adduced to support such a serious allegation.\n\nI have no hesitation in concluding that Mr. Hociung’s allegation is baseless. Unfortunately, as is often the case with self-represented litigants, it appears to be the result of a misunderstanding of the law and the task to be performed by a court when required to construe legislation before it.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-22", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 54–56", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "The fact that the Federal Court may have reached the wrong conclusion at paragraph 16 is in no way evidence of a bias, real or apprehended. Otherwise all decisions reversed in appeal or quashed on an application for judicial review based on an error of law or any other reviewable error would raise such an apprehension. This is simply not so.\n\nStatutory provisions, including definitions in statutes put in play by the issues before a court, are not “evidence”. When asked to construe a statute, a court may refer to the provisions that are clearly relevant as they are part of the context it must consider to reach its decision. I also note that there would have been no benefit to seek the parties’ views on those legislative provisions which they allegedly fail to expressly refer to, for they are quite unambiguous, and were clearly relevant to the issues raised by them.\n\nIn fact, when one considers the decision as a whole, especially the fact that the Federal Court dealt with the issue of whether collector coins could be included in the definition of “currency” under the Proceeds of Crime Act, it becomes clear that the Federal Court did not do what an allegedly bias decision maker would be expected to do. It did not accept the interpretation proposed by the respondent. It clearly endeavoured to answer Mr. Hociung’s preoccupation with the CBSA’s restrictive interpretation. Although Mr. Hociung may not agree with the interpretation of the Federal Court, the fact remains that he got more in that respect than he might otherwise have been entitled to on this motion.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-23", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 57–58", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having correctly concluded that there was a contravention to section 12 of the Customs Act, the Federal Court had the power, pursuant to Rule 215(3), to dismiss all the allegations relating to the appeal pursuant to section 135 of the Customs Act as it involves no other genuine issue. Its legal conclusion in respect of section 12 could also be sufficient to justify dismissing the claims for damages based on the allegations that the seizure constituted a fraud and a misapplication of the Customs Act in this case. On the other hand, as mentioned, it could not dismiss the claim based on alleged threats of violence.\n\nAlthough Mr. Hociung has attempted to summarize his various claims at paragraph 14 and again on page 15 of his memorandum of fact and law, I do not consider that this Court had the benefit of sufficient representations by the parties to render the decision that the Federal Court should have rendered had it properly exercised its power under section 215(3) of the Rules. Obviously, this Court cannot simply dismiss the motion for summary judgment, given its conclusion that there was a contravention to section 12 of the Customs Act. Thus, there is little choice but to return the matter to the Federal Court, who will be in a better position to deal with this issue after seeking additional written representations by the parties as this motion was made in writing pursuant to Rule 369.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-24", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 59–62", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, before concluding, I ought to add some comments for the benefit of Mr. Hociung. Now that it is clear that his appeal pursuant to section 135 of the Customs Act and his claims based on fraud and misrepresentations as to the right of the CBSA to seize his coins do not raise any genuine issue for trial, I urge him to seek legal advice so that he may seriously reassess whether he wishes to pursue whatever claims or allegations may remain in his statement of claim.\n\nThe fact that this appeal may be granted in part should not be construed in any manner as meaning that whatever claims or relief ultimately remaining have any chance of success. Clearly at this stage, this Court is not in a position to make such a finding, especially not having heard arguments from either side on the numerous legal issues raised by the melting pot of claims that may remain.\n\nMr. Hociung is a well-educated and intelligent man who clearly devoted much effort to researching the law. However, the fact remains that the issues raised in his action are highly technical and complex.\n\nFor example, he may not appreciate that the Federal Court does not have any inherent criminal jurisdiction to deal with offences under s. 469 of the Criminal Code or to impose penalties under the said Code. Also, in S.A. Metro Vancouver Housing Corp., 2019 SCC 4, the Supreme Court of Canada recently reiterated at paragraph 60 that: [d]eclaratory relief is granted by the courts on a discretionary basis, and may be appropriate where (a) the court has jurisdiction to hear the issue, (b) the dispute is real and not theoretical, (c) the party raising the issue has a genuine interest in its resolution, and (d) the responding party has an interest in opposing the declaration being sought […].", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-25", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 63–64", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is certainly not clear to me at this stage, given that the only basis on which Mr. Hociung’s coins were seized was a contravention to the Customs Act, that there is any real, as opposed to a theoretical dispute left, and that Mr. Hociung has a genuine interest (in the legal sense) in its resolution. This is why, among other things, legal advice at this stage would be most appropriate. It would also ensure that Mr. Hociung does not unduly expose himself to the payment of court costs should his remaining claims ultimately fail.\n\nThe appeal should be granted in part; the judgment of the Federal Court dismissing the action in its entirety should be quashed. The matter should be returned to the Federal Court for determination of which claims and relief can properly be dismissed on the basis of the Federal Court’s finding that Mr. Hociung has contravened section 12 of the Customs Act and the CBSA was legally entitled to seize his coins under the Customs Act. Obviously, this should not be construed as limiting any other order the Federal Court may choose to issue under Rule 215(3).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-26", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Given that success was divided on the issues raised in this appeal, I propose that each party pay their own costs. “Johanne Gauthier” J.A. “I agree Wyman W.Webb J.A.” “I agree Marianne Rivoalen J.A.” Annex 1 Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) Interpretation Définitions et champ d’application Definitions Définitions 2(1) In this Act, 2(1) Les définitions qui suivent s’appliquent à la présente loi. […] […] duties means any duties or taxes levied or imposed on imported goods under the Customs Tariff, the Excise Act, 2001, the Excise Tax Act, the Special Import Measures Act or any other Act of Parliament, but, for the purposes of subsection 3(1), paragraphs 59(3)(b) and 65(1)(b), sections 69 and 73 and subsections 74(1), 75(2) and 76(1), does not include taxes imposed under Part IX of the Excise Tax Act; (droits) droits Les droits ou taxes imposés, en vertu de la Loi de 2001 sur l’accise, de la Loi sur la taxe d’accise, de la Loi sur les mesures spéciales d’importation, du Tarif des douanes ou de toute autre loi fédérale, sur les marchandises importées. En sont exclues, pour l’application du paragraphe 3(1), des alinéas 59(3)b) et 65(1)b), des articles 69 et 73 et des paragraphes 74(1), 75(2) et 76(1), les taxes imposées en vertu de la partie IX de la Loi sur la taxe d’accise. (duties) […] […] Report of Goods Déclaration Report Déclaration Certain goods not subject to seizure Marchandises soustraites à la saisie-confiscation 12(7) Goods described in tariff item No.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-27", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "9813.00.00 or 9814.00.00 in the List of Tariff Provisions set out in the schedule to the Customs Tariff 12(7) Ne peuvent être saisies à titre de confiscation en vertu de la présente loi, pour la seule raison qu’elles n’ont pas fait l’objet de la déclaration prévue au présent article, les marchandises, visées aux nos tarifaires 9813.00.00 ou 9814.00.00 de la liste des dispositions tarifaires de l’annexe du Tarif des douanes, pour lesquelles les conditions suivantes sont réunies : (a) that are in the actual possession of a person arriving in Canada, or that form part of his baggage, where the person and his baggage are being carried on board the same conveyance, a) elles sont en la possession effective ou parmi les bagages d’une personne se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada; (b) that are not charged with duties, and b) elles ne sont pas passibles de droits; (c) the importation of which is not prohibited under the Customs Tariff or prohibited, controlled or regulated under any Act of Parliament other than this Act or the Customs Tariff may not be seized as forfeit under this Act by reason only that they were not reported under this section. c) leur importation n’est pas prohibée par le Tarif des douanes, ni prohibée, contrôlée ou réglementée sous le régime d’une loi fédérale autre que la présente loi ou le Tarif des douanes.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-28", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] […] Obligation to answer questions and present goods Obligations du déclarant 13 Every person who reports goods under section 12 inside or outside Canada or is stopped by an officer in accordance with section 99.1 shall 13 La personne qui déclare, dans le cadre de l’article 12, des marchandises à l’intérieur ou à l’extérieur du Canada, ou qu’un agent intercepte en vertu de l’article 99.1 doit : (a) answer truthfully any question asked by an officer with respect to the goods; and a) répondre véridiquement aux questions que lui pose l’agent sur les marchandises; (b) if an officer so requests, present the goods to the officer, remove any covering from the goods, unload any conveyance or open any part of the conveyance, or open or unpack any package or container that the officer wishes to examine. b) à la demande de l’agent, lui présenter les marchandises et les déballer, ainsi que décharger les moyens de transport et en ouvrir les parties, ouvrir ou défaire les colis et autres contenants que l’agent veut examiner. […] […] Presumption of importation Présomption d’importation 18 (1) For the purposes of this section, all goods reported under section 12 shall be deemed to have been imported. 18 (1) Pour l’application du présent article, toutes les marchandises déclarées conformément à l’article 12 sont réputées avoir été importées.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-29", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Liability of person reporting goods short landed Solidarité du déclarant et de son mandant (2) Subject to subsections (3) and 20(2.1), any person who reports goods under section 12, and any person for whom that person acts as agent or employee while so reporting, are jointly and severally or solidarily liable for all duties levied on the goods unless one or the other of them proves, within the time that may be prescribed, that the duties have been paid or that the goods (2) En cas d’application de l’article 12, le déclarant et son mandant ou employeur sont, sous réserve des paragraphes (3) et 20(2.1), solidairement responsables de tous les droits imposés sur les marchandises, sauf si, dans le délai réglementaire, l’un d’eux établit le paiement des droits ou, à propos des marchandises, l’un des faits suivants : (a) were destroyed or lost prior to report or destroyed after report but prior to receipt in a place referred to in paragraph (c) or by a person referred to in paragraph (d); a) elles ont été soit détruites ou perdues avant la déclaration, soit détruites entre le moment de la déclaration et leur réception en un lieu visé à l’alinéa c) ou par la personne visée à l’alinéa d); (b) did not leave the place outside Canada from which they were to have been exported; b) elles n’ont pas quitté le lieu de l’extérieur du Canada d’où elles devaient être exportées; (c) have been received in a customs office, sufferance warehouse, bonded warehouse or duty free shop; c) elles ont été reçues dans un bureau de douane, un entrepôt d’attente, un entrepôt de stockage ou une boutique hors taxes; (d) have been received by a person who transports or causes to be transported within Canada goods in accordance with subsection 20(1); d) elles ont été reçues par une personne qui fait", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-30", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "office de transitaire conformément au paragraphe 20(1); (e) have been exported; or e) elles ont été exportées; (f) have been released. f) elles ont été dédouanées. Rates of duties Taux des droits (3) The rates of duties payable on goods under subsection (2) shall be the rates applicable to the goods at the time they were reported under section 12. (3) Le taux des droits payables sur les marchandises conformément au paragraphe (2) est celui qui leur est applicable au moment où elles font l’objet de la déclaration prévue à l’article 12. Regulations Règlements (4) The Governor in Council may make regulations prescribing the circumstances in which such bonds or other security as may be prescribed may be required from any person who is or may become liable for the payment of duties under this section. (4) Le gouverneur en conseil peut, par règlement, fixer les cautions ou autres garanties susceptibles d’être souscrites par les personnes effectivement ou éventuellement redevables de droits au titre du présent article et déterminer les circonstances de la souscription. Federal Courts Rules, S.O.R./98-106 Joinder of claims Causes d’action multiples 101 (1) Subject to rule 302, a party to a proceeding may request relief against another party to the same proceeding in respect of more than one claim. 101 (1) Sous réserve de la règle 302, une partie à une instance peut faire une demande de réparation contre une autre partie à l’instance à l’égard de deux ou plusieurs causes d’action. Separate capacity Réparation à titre distinct (2) A party may request relief in a separate capacity in respect of different claims in a single proceeding. (2) Une partie peut demander réparation à titre distinct pour diverses causes d’action faisant l’objet d’une instance.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-31", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Interest in all relief not essential Réparation ne visant pas toutes les parties (3) Not all parties to a proceeding need have an interest in all relief claimed in the proceeding. (3) Il n’est pas nécessaire que chacune des parties à l’instance soit visée par toutes les réparations demandées dans le cadre de celle-ci. […] […] Separate determination of claims and issues Instruction distincte des causes d’action 106 Where the hearing of two or more claims or parties in a single proceeding would cause undue complication or delay or would prejudice a party, the Court may order that 106 Lorsque l’audition de deux ou plusieurs causes d’action ou parties dans une même instance compliquerait indûment ou retarderait le déroulement de celle-ci ou porterait préjudice à une partie, la Cour peut ordonner : (a) claims against one or more parties be pursued separately; a) que les causes d’action contre une ou plusieurs parties soient poursuivies en tant qu’instances distinctes; (b) one or more claims be pursued separately; b) qu’une ou plusieurs causes d’action soient poursuivies en tant qu’instances distinctes; (c) a party be compensated for, or relieved from, attending any part of the proceeding in which the party does not have an interest; or c) qu’une indemnité soit versée à la partie qui doit assister à toute étape de l’instance dans laquelle elle n’a aucun intérêt, ou que la partie soit dispensée d’y assister; (d) the proceeding against a party be stayed on condition that the party is bound by any findings against another party. d) qu’il soit sursis à l’instance engagée contre une partie à la condition que celle-ci soit liée par les conclusions tirées contre une autre partie. Customs Tariff, S.C. 1997, c.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-32", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "36 PART 1 PARTIE 1 Interpretation and General Définitions et dispositions générales Interpretation [EN BLANC] Definitions Définitions 2 (1) The definitions in this subsection apply in this Act. 2 (1) Les définitions qui suivent s’appliquent à la présente loi. […] […] tariff item means a description of goods in the List of Tariff Provisions and the rates of customs duty and the accompanying eight-digit number in that List and, if applicable, in the “F” Staging List. (numéro tarifaire) numéro tarifaire Dénomination de marchandises, figurant sur la liste des dispositions tarifaires, marquée d’un numéro à huit chiffres et les taux figurant sur cette liste et, le cas échéant, au tableau des échelonnements. (tariff item) […] […] Words and expressions in Act Termes de la Loi sur les douanes 4 Unless otherwise provided, words and expressions used in this Act and defined in subsection 2(1) of the Customs Act have the same meaning as in that subsection. 4 Sauf indication contraire, les termes et expressions utilisés dans la présente loi et définis au paragraphe 2(1) de la Loi sur les douanes s’entendent au sens de ce paragraphe. … […] Classification of goods in the List of Tariff Provisions Classement des marchandises dans la liste des dispositions tarifaires 10 (1) Subject to subsection (2), the classification of imported goods under a tariff item shall, unless otherwise provided, be determined in accordance with the General Rules for the Interpretation of the Harmonized System and the Canadian Rules set out in the schedule.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-33", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "10 (1) Sous réserve du paragraphe (2), le classement des marchandises importées dans un numéro tarifaire est effectué, sauf indication contraire, en conformité avec les Règles générales pour l’interprétation du Système harmonisé et les Règles canadiennes énoncées à l’annexe. Classification of “within access commitment” goods Classement de marchandises « dans les limites de l’engagement d’accès » (2) Goods shall not be classified under a tariff item that contains the phrase “within access commitment” unless the goods are imported under the authority of a permit issued under section 8.3 of the Export and Import Permits Act and in compliance with the conditions of the permit. 2) Des marchandises ne peuvent être classées dans un numéro tarifaire comportant la mention « dans les limites de l’engagement d’accès » que dans le cas où leur importation procède d’une licence délivrée en vertu de l’article 8.3 de la Loi sur les licences d’exportation et d’importation et en respecte les conditions.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-34", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "Customs Tariff – Schedule Section X: Pulp of Wood or of Other Fibrous Cellulosic Material; Recovered (Waste and Scrap) Paper or Paperboard; Paper and Paperboard and Articles Thereof Section X : Pâtes de bois ou d'autres matières fibreuses cellulosiques; Papier ou carton à recycler (déchets et rebuts); Papier et ses applications 49 PRINTED BOOKS, NEWSPAPERS, PICTURES AND OTHER PRODUCTS OF THE PRINTING INDUSTRY; MANUSCRIPTS, TYPESCRIPTS AND PLANS 49 PRODUITS DE L'ÉDITION, DE LA PRESSE OU DES AUTRES INDUSTRIES GRAPHIQUES; TEXTES MANUSCRITS OU DACTYLOGRAPHIÉS ET PLANS 4907.00.00 Unused postage, revenue or similar stamps of current or new issue in the country in which they have, or will have, a recognized face value; stamp-impressed paper; banknotes; cheque forms; stock, share or bond certificates and similar documents of title. 4907.00.00 Timbres-poste, timbres fiscaux et analogues, non oblitérés, ayant cours ou destinés à avoir cours dans le pays dans lequel ils ont, ou auront, une valeur faciale reconnue; papier timbré; billets de banque; chèques; titres d'actions ou d'obligations et titres similaires. Banknotes being legal tender: Billets de banque, ayant cours légal : 4907.00.00.12 Issued 4907.00.00.12 Émis […] […] Section XIV Chapter 71: Natural or Cultured Pearls, Precious or Semi-precious Stones, Precious Metals, Metals Clad with Precious Metal, and Articles Thereof; Imitation Jewellery; Coin Section XIV Chapitre 71 : Perles fines ou de culture, pierres gemmes ou similaires, métaux précieux, plaqués ou doublés de métaux précieux et ouvrages en ces matières; bijouterie de fantaisie; monnaies 7118 Coin 7118 Monnaies.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-35", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] […] 7118.90.00 Other 7118.90.00 Autres 7118.90.00.10 Gold coin 7118.90.00.10 Pièces de monnaie d'or 7118.90.00.91 Canadian coin 7118.90.00.91 Monnaie canadienne […] […] 7118.90.00.99 Other 7118.90.00.99 Autres Proceeds of Crime (Money Laundering) and Terrorist Financing Act, 2000, c. 17 Currency and monetary instruments Déclaration 12 (1) Every person or entity referred to in subsection (3) shall report to an officer, in accordance with the regulations, the importation or exportation of currency or monetary instruments of a value equal to or greater than the prescribed amount. 12 (1) Les personnes ou entités visées au paragraphe (3) sont tenues de déclarer à l’agent, conformément aux règlements, l’importation ou l’exportation des espèces ou effets d’une valeur égale ou supérieure au montant réglementaire. Limitation Exception (2) A person or entity is not required to make a report under subsection (1) in respect of an activity if the prescribed conditions are met in respect of the person, entity or activity, and if the person or entity satisfies an officer that those conditions have been met. (2) Une personne ou une entité n’est pas tenue de faire une déclaration en vertu du paragraphe (1) à l’égard d’une importation ou d’une exportation si les conditions réglementaires sont réunies à l’égard de la personne, de l’entité, de l’importation ou de l’exportation et si la personne ou l’entité convainc un agent de ce fait. Sending reports to Centre Transmission au Centre (5) The Canada Border Services Agency shall send the reports they receive under subsection (1) to the Centre.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-36", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "It shall also create an electronic version of the information contained in each report, in the format specified by the Centre, and send it to the Centre by the electronic means specified by the Centre. (5) L’Agence des services frontaliers du Canada fait parvenir au Centre les déclarations recueillies en application du paragraphe (1) et établit, dans la forme prévue par le Centre, une version électronique des renseignements contenus dans chaque déclaration qu’elle transmet au Centre par les moyens électroniques prévus par celui-ci. Cross-border Currency and Monetary Instruments Reporting Regulations, S.O.R./2002-412 Minimum Value of Currency or Monetary Instruments Valeur minimale des espèces ou effets 2 (1) For the purposes of reporting the importation or exportation of currency or monetary instruments of a certain value under subsection 12(1) of the Act, the prescribed amount is $10,000. 2 (1) Pour l’application du paragraphe 12(1) de la Loi, les espèces ou effets dont l’importation ou l’exportation doit être déclarée doivent avoir une valeur égale ou supérieure à 10 000 $.", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-37", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 65", + "heading": "Whether gold coins are currency or monetary instruments that must be reported on import under the PCMLTFA cross-border regime", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The prescribed amount is in Canadian dollars or its equivalent in a foreign currency, based on (2) La valeur de 10 000 $ est exprimée en dollars canadiens ou en son équivalent en devises selon : (a) the official conversion rate of the Bank of Canada as published in the Bank of Canada’s Daily Memorandum of Exchange Rates that is in effect at the time of importation or exportation; or a) le taux de conversion officiel de la Banque du Canada publié dans son Bulletin quotidien des taux de change en vigueur à la date de l’importation ou de l’exportation; (b) if no official conversion rate is set out in that publication for that currency, the conversion rate that the person or entity would use for that currency in the normal course of business at the time of the importation or exportation. b) dans le cas où la devise ne figure pas dans ce bulletin, le taux de conversion que le déclarant utiliserait dans le cours normal de ses activités à cette date. FEDERAL COURT OF APPEAL", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-32333-1", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 1–3", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The primary issue on this appeal is whether the Immigration Division properly found that, notwithstanding he was under the age of eighteen years at the relevant time (a minor), there were reasonable grounds to believe that the appellant, Piran Ahmadi Poshteh, was a member of a terrorist organization for purposes of determining whether he was inadmissible to Canada on security grounds under paragraph 34(1)(f) of the Immigration Refugee and Protection Act, S.C. 2001, c. 27. Paragraph 34(1)(f) provides: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for . . . (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants_: . . . f) être membre d'une organisation dont il y a des motifs raisonnables de croire qu'elle est, a été ou sera l'auteur d'un acte visé aux alinéas a), b) ou c). FACTS\n\nThe following facts are taken from the decision of the Immigration Division in Mr. Poshteh's admissibility hearing. They are not in dispute.\n\nMr. Poshteh is a citizen of Iran. His father had been a member of the Mujahedin-e-Khalq (MEK), an organization in respect of which there are reasonable grounds to believe engages, has engaged or will engage in terrorism. In 1999, when Mr. Poshteh was 15, his father died. Mr. Poshteh blamed the Iranian government for his father's death.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-2", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 4–6", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh wanted to join the MEK to help achieve his father's goal, which he understood was to overthrow the Iranian government. However, when he approached his father's friend, whom he believed was a member of the MEK, the friend would not allow him to join, although he did allow him to participate through the dissemination of propaganda.\n\nMr. Poshteh and a friend distributed MEK propaganda leaflets in Tehran one or two times per month. He carried on this activity from February 2000 until June 2002, when he was almost eighteen (seventeen years and eleven months). He ceased this activity when he was arrested and detained for two weeks by the police. Aside from distributing the propaganda leaflets, he had no other involvement in MEK activities.\n\nMr. Poshteh arrived in Canada on September 16, 2002, and was interviewed by an immigration officer. Pursuant to subsection 44(1) of the Act, the officer reported, among other things, that Mr. Poshteh was inadmissible to Canada under paragraph 34(1)(f) of the Act. The immigration officer's report was transmitted to the Minister of Citizenship and Immigration under subsection 44(1) of the Act. The Minister referred the report to the Immigration Division for an admissibility hearing under subsection 44(2) of the Act. Following a hearing, the Immigration Division found that there were reasonable grounds to believe that Mr. Poshteh was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism and that Mr. Poshteh therefore was not admissible to Canada pursuant to 34(1)(f) of the Act. JUDICIAL REVIEW AND CERTIFIED QUESTION", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-3", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 7–10", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh sought judicial review in the Federal Court. Gibson J. found no reviewable error by the Immigration Division and dismissed the judicial review. However, he certified the following question for appeal pursuant to paragraph 74(d) of the Act: Having regard to section 7 of the Canadian Charter of Rights and Freedoms and international human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, is there, on the particular facts underlying this application for judicial review, any distinction in liability between the Applicant who was a minor at all times relevant to his activities on behalf of the Mujahedin-e-Khalq and an adult undertaking equivalent activities on behalf of such an organization without being a formal member of that organization, for inadmissibility under subsection 34(1) of the Immigration and Refugee Protection Act?\n\nThis appeal arises from that certified question. ISSUES\n\nThere are two issues in the appeal: 1. whether, irrespective of his age, there are reasonable grounds to believe that Mr. Poshteh was a member of the MEK; and 2. whether Mr. Poshteh's status as a minor is a relevant consideration under paragraph 34(1)(f) of the Act and if so, what considerations are to be taken into account in determining membership by a minor.\n\nWhether there are reasonable grounds to believe that the MEK engages, has engaged or will engage in terrorism is not in issue. The Immigration Division found there were reasonable grounds to so believe and this determination is not challenged by Mr. Poshteh. POSITION OF MR. POSHTEH", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-4", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 11–14", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh says that the test for membership in a terrorist organization should be based on the degree of integration of the individual within the organization. He says he was not sufficiently integrated into the MEK to be considered a member.\n\nHowever, his primary argument is that in the case of a minor, the term \"member\" in paragraph 34(1)(f) should be construed narrowly, interpreted as applying only to individuals directly involved in violence or who hold leadership positions in the terrorist organization. Such an interpretation would mean that paragraph 34(1)(f) would be inapplicable to Mr. Poshteh because his activities were not violent and because he was not acting in a leadership capacity. POSITION OF THE INTERVENER\n\nThe intervener, Canadian Foundation for Children, Youth and the Law, takes the position that \"the decision as to whether or not the pamphleting activities of a child make the person inadmissible as a member of a terrorist organization must be made in the best interests of the child, whether the child seeks asylum in Canada or seeks asylum after becoming a rehabilitated young adult.\" ANALYSIS Section 33\n\nSection 33 provides: 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits - actes ou omissions - mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu'ils sont survenus, surviennent ou peuvent survenir.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-5", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 15–19", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The parties do not take issue with the test for inadmissibility applied by the Immigration Division - that there are reasonable grounds to believe that the foreign national was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts of terrorism. For the sake of simplicity, I will take the liberty of referring to the security grounds for inadmissibility in this case as \"being a member of a terrorist organization.\" Standard of Review - Decision of the Immigration Division\n\nThere is disagreement between the parties as to whether the standard of review that should be applied by the Federal Court to the Immigration Division's decision is reasonableness or correctness. Based on the approach of the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, a pragmatic and functional analysis is required.\n\nA serious question of general importance arising from the decision of the Immigration Division has been certified under paragraph 74(d) of the Act. Although the question refers to \"the particular facts underlying this application for judicial review,\" I infer that the question was certified for appeal because, in the opinion of Gibson J., the application of paragraph 34(1)(f) to minors is a question of general importance. This generally suggests a less deferential standard of review.\n\nThe Immigration Division has expertise in fact-finding which requires great deference to its findings of fact. In this case, the findings of fact by the Immigration Division are not in dispute.\n\nThe issues here are not \"polycentric,\" but rather are ones in which the state is a protagonist against the individual. This supports less deference on both issues.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-6", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 20–21", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Both issues involve questions of mixed fact and law. However, the legal components of the issues can be extricated from the mixed questions. In the case of the first issue, the legal question is the interpretation of the term \"member\" in paragraph 34(1)(f). In the case of the second issue, the legal question is whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant.\n\nParagraph 34(1)(f) forms part of the Immigration Division's constituent legislation. The question of membership in a terrorist organization is not something that is extraneous to its regular work. The expertise of the Immigration Division is in, among other things, determining whether criteria for inadmissibility have been established. These criteria include membership in a terrorist organization. Therefore, the interpretation of the term \"member\" in paragraph 34(1)(f) is, I think, a legal matter with respect to which the Immigration Division has some expertise. Finally, I would note that the interpretation of the term \"member\" in paragraph 34(1)(f), while necessary to address, is not a matter squarely within the question certified by Gibson J. Therefore, some deference is due the Immigration Division on this legal issue.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-7", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 22–24", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, whether Mr. Poshteh's status as a minor is to be taken into account and if so, what considerations are relevant, is not a legal question that the Immigration Division would regularly encounter. There is no reference to age in paragraph 34(1)(f). On the other hand, the courts do encounter cases in which the application of a law to a minor is a relevant consideration. Whether age is to be taken into account and if so, in what manner are matters in which the expertise of the Court is greater than that of the Immigration Division, suggesting less deference on this issue.\n\nHaving regard to the pragmatic and functional considerations to which I have adverted, I conclude: (a) the question of the interpretation of the term \"member\" in paragraph 34(1)(f) is reviewable on a standard of reasonableness; and (b) the question of whether age is to be considered under paragraph 34(1)(f) and if so, the manner of doing so is reviewable on a standard of correctness.\n\nApplying the relevant standards of review to the legal questions, should the Court find it necessary to intervene, the Court will either quash the Immigration Division's decision if it finds that Mr. Poshteh could not be a member of a terrorist organization or it will remit the matter to the Immigration Division for redetermination having regard to the proper legal tests. However, should the Court not find the Immigration Division's legal determinations with respect to the term \"member\" and Mr. Poshteh's minor status to be unreasonable or incorrect, respectively, the questions of mixed fact and law, namely the application of the law to the facts by the Immigration Division, should be reviewed on a reasonableness standard. Standard of Review - Decision of the Federal Court", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-8", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 25–26", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The standard of review by this Court of the Federal Court decision is correctness on a question of law and palpable and overriding error on a question of fact or mixed law and fact. (See Housen v. Nikolaisen, [2002] 2 S.C.R. 235 and Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226.) Issue 1: Member - Law\n\nI now turn to whether, without regard for Mr. Poshteh's age, his activities for the MEK could constitute him a member of that organization. If an adult would not be considered a member on the facts applicable to Mr. Poshteh, it will be unnecessary to address the question of age. Only if his activities would have resulted in him being found to be a member if he were an adult at the relevant time, will it be necessary to consider whether his status as a minor at that time requires a different conclusion.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-9", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "para 27", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is no definition of the term \"member\" in the Act. The courts have not established a precise and exhaustive definition of the term. In interpreting the term \"member\" in the former Immigration Act, R.S.C. 1985, c. I-2, the Trial Division (as it then was) has said that the term is to be given an unrestricted and broad interpretation. The rationale for such an approach is set out in Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 at paragraph 52 (T.D.): [52] The provisions deal with subversion and terrorism. The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not therefore easily identifiable. The Minister of Citizenship and Immigration may, if not detrimental to the national interest, exclude an individual from the operation of s. 19(1)(f)(iii)(B). I think it is obvious that Parliament intended the term \"member\" to be given an unrestricted and broad interpretation.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-10", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 28–30", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The same considerations apply to paragraph 34(1)(f) of the Immigration Refugee and Protection Act. As was the case in the Immigration Act, under subsection 34(2) of the Immigration and Refugee Protection Act, membership in a terrorist organization does not constitute inadmissibility if the individual in question satisfies the Minister that their presence in Canada would not be detrimental to the national interest. Subsection 34(2) provides: 34(2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. 34(2) Ces faits n'emportent pas interdiction de territoire pour le résident permanent ou l'étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l'intérêt national. Thus, under subsection 34(2), the Minister has the discretion to exclude the individual from the operation of paragraph 34(1)(f).\n\nBased on the rationale in Singh and, in particular, on the availability of an exemption from the operation of paragraph 34(1)(f) in appropriate cases, I am satisfied that the term \"member\" under the Act should continue to be interpreted broadly.\n\nNonetheless, Mr. Poshteh says that the Immigration Division erred by determining the question of membership on the basis of the nature and duration of his activities, while failing to consider his level of integration within the organization. He says the key consideration for membership is a significant level of integration within an organization. He submits that adopting significant integration as the test for membership would promote more consistent decision-making by the Immigration Division.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-11", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 31–32", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am not persuaded that Mr. Poshteh's significant integration test would achieve the consistency that he says is presently lacking in Immigration Division decisions. A significant integration test would still require an assessment of the facts and a judgment as to whether the degree of integration in any particular case was sufficient to constitute the individual a member. More importantly, a test for membership based on significant integration would not be consistent with the broad interpretation to be given to the term \"member.\"\n\nThe Immigration Division adopted a broad approach to the interpretation of the term \"member.\" It was not unreasonable for it to have done so. Issue 1: Member - Facts", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-12", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 33–34", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division's factual findings are the following: (a) Mr. Poshteh's involvement with the MEK consisted solely of disseminating propaganda; (b) he disseminated propaganda for approximately two years; (c) at his hearing he referred to himself at one point as a member; (d) his involvement went beyond that of a mere sympathizer or supporter; (e) he shared in the MEK's overriding goal to overthrow the Iranian government; (f) although he was not formally enlisted in the MEK, it was not for lack of trying. He desperately wished to enlist in some formal fashion. He claimed he was denied that permission, but was allowed for a period of two years to engage in an activity for the benefit of the MEK; (g) propaganda is an important part of the MEK. The purpose is partly to educate but also to enlist sympathy and support for the cause. Support could range from funding, to enlistment of new members, to creating a climate where activities, violent or otherwise, could proceed; and (h) the distribution of propaganda twenty-four to forty-eight times over a period of two years was a significant level of activity and was not marginal or minimal.\n\nBased on these findings, the Immigration Division concluded that the functions Mr. Poshteh performed were equal to those of a member of the MEK and that he fulfilled the role of member for purposes of paragraph 34(1)(f) of the Act.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-13", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 35–37", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Poshteh gives a number of reasons why he was not significantly integrated within the MEK. He says he never received initiation, indoctrination or training. He never attended meetings. He did not know where the meetings were held or the hierarchy of the group. He had no decision-making power. He did not create the propaganda. He did not recruit members or raise funds. His only contacts were his father's friend and the individual with whom he distributed the propaganda. He says he was not involved in influential media such as radio, television or newspaper propaganda. In addition, the flyers were not distributed more broadly than in local neighbourhoods and schools. Given these circumstances, Mr. Poshteh says his involvement was limited.\n\nIn any given case, it will always be possible to say that although a number of factors support a membership finding, a number point away from membership. An assessment of these facts is within the expertise of the Immigration Division.\n\nHere, the Immigration Division based its conclusion on what appears to be a thorough assessment of the evidence. It considered what Mr. Poshteh did, the length of his involvement with the MEK, his attempt to become a formal member and the effect of distributing propaganda. It concluded that Mr. Poshteh's activity was not minimal or marginal and was sufficient to constitute membership for purposes of paragraph 34(1)(f).", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-14", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 38–40", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Based upon a somewhat probing examination, I cannot say that the reasons of the Immigration Division do not adequately support its conclusion that Mr. Poshteh was a member of the MEK for purposes of paragraph 34(1)(f) (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at paragraphs 48-56). Not finding the Immigration Division's decision to be unreasonable, I conclude that Gibson J. did not err in deferring to that decision. Issue 2: Age - Law\n\nI now turn to the second issue. Mr. Poshteh does not ask for a blanket exemption from paragraph 34(1)(f) for minors. Rather, his argument is that having regard to his status as a minor, he should not be considered to be a member unless he was involved in violent activities or was a leader of the organization.\n\nThere is no express exemption for minors in section 34. To find a blanket exemption for minors would require reading words into paragraph 34(1)(f) that were not put there by Parliament. The Court must take the statute as it finds it. Therefore, I agree with Mr. Poshteh that there is no blanket exemption from paragraph 34(1)(f) for minors.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-15", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 41–42", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "By contrast, subsection 36(3)(e) of the Act provides that an individual cannot be found to be criminally inadmissible for an offence under the Young Offenders Act. (The Young Offenders Act was repealed on April 1, 2003, and replaced by the Youth Criminal Justice Act, S.C. 2002, c. 1.) Paragraph 36(3)(e) provides: (3) The following provisions govern subsections (1) and (2): . . . (e) inadmissibility under subsections (1) and (2) may not be based on an offence designated as a contravention under the Contraventions Act or an offence under the Young Offenders Act. (3) Les dispositions suivantes régissent l'application des paragraphes (1) et (2)_: . . . e) l'interdiction de territoire ne peut être fondée sur une infraction qualifiée de contravention en vertu de la Loi sur les contraventions ni sur une infraction à la Loi sur les jeunes contrevenants. Essentially, this means that for most offences committed by a minor, the individual will not be found to be criminally inadmissible. There is no similar provision that would provide for a blanket age exemption in section 34.\n\nHowever, I do not say that Parliament's silence on the subject of age in section 34 implies that the individual's status as a minor is irrelevant to the question of membership. An individual's status as a minor is widely recognized in both statute and common law and I see no reason why it should be ignored for purposes of paragraph 34(1)(f). (See R. v. Hill, [1986] 1 S.C.R. 313 at 348-351 per Wilson J. dissenting. The majority reasons are not in conflict with her general comments on this point.)", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-16", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 43–44", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nonetheless, that recognition of an individual's status as a minor does not in all cases require a blanket exemption from application of a law to the minor. That is particularly the case where the status of a minor is recognized by the common law but not by statute. In the case of common law recognition, capacity is often viewed on a continuum on which the presumption of capacity increases with the age of the minor. (In the context of criminal law, see R. v. Chaulk, [1990] 3 S.C.R. 1303 at 1319-1320 per Lamer C.J.; in the context of tort law, see R. v. Hill, supra, per Wilson J. at pages 350-351.)\n\nA statutory blanket exemption or exclusion in respect of minors is often a proxy for individual assessments of matters such as maturity, responsibility or mental capacity to make an informed decision, where such individual assessments are impractical. In the case of voting rights, for example, it has been held that setting the voting age at eighteen is to ensure, as far as possible, that those eligible to vote are mature enough to make rational and informed decisions about who should represent them in government (see Fitzgerald (Next friend of) v. Alberta, [2003] 3 W.W.R. 752 (Q.B.), aff'd [2004] 6 W.W.R. 416 (C.A.), leave to appeal to S.C.C. refused, 6 January 2005). It would obviously not be possible to conduct such an assessment on an individual basis for voting purposes. A bright-line age test is therefore a practical way to deal with the matter.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-17", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 45–47", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Different considerations apply in respect of paragraph 34(1)(f). Here, the Act expressly provides for individual assessments for admissibility. That is not to say that Parliament could not, as it did in section 36, provide for a blanket age exemption in section 34. But because Parliament did not do so, an individual's status as a minor is simply a further consideration in the individual assessment made under paragraph 34(1)(f).\n\nHaving concluded that, although there is no blanket exemption for minors, an individual's status as a minor is still relevant under paragraph 34(1)(f), the next question is what considerations are to be taken into account.\n\nIt seems to me that in the context of age, relevant considerations in paragraph 34(1)(f) would be matters such as whether the minor has the requisite knowledge or mental capacity to understand the nature and effect of his actions. It is open to the minor to advance those considerations and whatever other arguments support an exemption from paragraph 34(1)(f) on the basis of his status as a minor and to provide evidence in support of those arguments.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-18", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 48–49", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "While a finding of membership in a terrorist organization may be possible for a minor of any age, it would be highly unusual for there to be a finding of membership in the case of a young child, say, under the age of twelve. Although it will depend on the evidence in each case, it would seem self-evident that in the case of such children, the presumption would be that they do not possess the requisite knowledge or mental capacity to understand the nature and effect of their actions. In the case of young children, the age of the child itself would be prima facie evidence of an absence of the requisite knowledge or mental capacity. There would be an obligation on the Immigration Division to carefully consider the level of understanding of such a child.\n\nIndeed, at common law there was an irrebuttable presumption that a child under the age of seven was incapable of possessing criminal intent; once a child reached the age of fourteen, the common law presumption of criminal incapacity disappeared and was replaced by a rebuttable presumption of capacity for criminal intent. (See R. v. Chaulk, supra, at page 1319.) Today, under section 13 of the Criminal Code, R.S.C. 1985, c. C-46, a child shall not be convicted of an offence in respect of an act or omission on his part while under the age of twelve years. Section 13 provides: 13. No person shall be convicted of an offence in respect of an act or omission on his part while that person was under the age of twelve years. 13. Nul ne peut être déclaré coupable d'une infraction à l'égard d'un acte ou d'une omission de sa part lorsqu'il était âgé de moins de douze ans.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-19", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 50–52", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Over the age of eleven, minors are held responsible for their criminal actions. The Youth Criminal Justice Act provides for a unique system of procedures, courts and dispositions from that provided in the Criminal Code, but it does not provide an exemption from criminal responsibility for a minor's actions.\n\nFor purposes of determining membership in a terrorist organization by a minor, the requisite knowledge or mental capacity should be viewed on a continuum. Just as there would be a presumption against the requisite knowledge or mental capacity in the case of young children, there would be a presumption that the closer the minor is to eighteen years of age, the greater will be the likelihood that the minor possesses the requisite knowledge or mental capacity.\n\nI have said that it is open to the minor to raise whatever factors he considers relevant in the particular case. For example, issues of duress or coercion may be relevant. However, these issues do not arise in this case since it was Mr. Poshteh who approached his father's friend, asking to become a member of the MEK.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-20", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 53–55", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "I would agree with Mr. Poshteh that it would be very difficult for a minor to argue that he should not be found to be a member if he had been directly involved in violent activities or had held a leadership role in the terrorist organization. However, lesser involvement may still result in a finding of membership. It is not necessarily the nature of the involvement with the terrorist organization that will determine the issue, although those considerations may be relevant. Rather, matters such as knowledge or mental capacity are the types of considerations to be taken into account in deciding whether a determination of membership in a terrorist organization in the case of a minor is to be different than in the case of an adult.\n\nThe Immigration Division's reasons demonstrate that it dealt with Mr. Poshteh's arguments based on age and it was correct in so doing. Even though Mr. Poshteh did not make explicit lack of knowledge or mental capacity arguments, the Immigration Division's reasons do inferentially deal with his knowledge and mental capacity. Issue 2: Age - Facts\n\nIn acknowledging and dealing with Mr. Poshteh's arguments based on age, the Immigration Division concluded that: 1. Mr. Poshteh was not ignorant of the violent activities of the MEK; 2. he became involved with the MEK of his own volition; 3. his involvement may have been initially motivated by passion but it continued for two years; and 4. he made his own decisions, even against the advice of adults.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-21", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 56–57", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division found that Mr. Poshteh continued his activity with the MEK until he was seventeen years and eleven months. Where a minor of that age knows of the violent activity of the organization, becomes involved of his own volition, continues for over two years and leaves only after he is arrested, it cannot be said that it is unreasonable for the Immigration Division not to accept his arguments based on his status as a minor and to find him to be a member of the terrorist organization. The Best Interests of the Child\n\nMr. Poshteh and the intervener argue that in the case of a minor, the Immigration Division must take into account the best interests of the child. Indeed, paragraph 3(3)(f) requires that the Act be construed and applied in a manner that complies with international human rights instruments to which Canada is a signatory. Paragraph 3(3)(f) provides: 3(3) This Act is to be construed and applied in a manner that . . . (f) complies with international human rights instruments to which Canada is signatory. 3(3) L'interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet_: . . . f) de se conformer aux instruments internationaux portant sur les droits de l'homme dont le Canada est signataire.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-22", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 58–60", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "One such instrument is the Convention on the Rights of the Child, 20 November 1989, 1577 U.N.T.S. 3, Can. T.S. 1992 No. 3 (entered into force 2 September 1990). Article 3 requires that in all actions of courts of law and administrative authorities, the best interests of the child shall be a primary consideration. Article 3.1 provides: 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be of primary concern.\n\nI do not think that the Convention on the Rights of the Child is relevant in this case. For purposes of the Convention, the action in this case is the proceeding and decision of the Immigration Division. However, at the time the matter was considered by the Immigration Division, Mr. Poshteh was no longer a minor. He was eighteen when he arrived in Canada. As I read the Convention, it is concerned with the interests of children while they are children. It does not purport to confer rights on adults.\n\nIt is important in this case to distinguish between considerations such as whether an individual has the knowledge or mental capacity to understand the nature and effect of his actions, which are relevant, and the \"best interests of the child\" considerations under the Convention, which are not relevant. Mr. Poshteh was an adult when he invoked and became subject to Canada's immigration laws and procedures and therefore he cannot rely on the Convention. Charter Rights", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-23", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 61–62", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division found that Mr. Poshteh's section 7 Charter rights were not engaged. In his factum, Mr. Poshteh says that he \"... does not seek to challenge that finding in this proceeding ...\". However, he argues that even though his life, liberty and security of the person rights are not engaged, Parliament's intention is that the Act is to be construed in a manner consistent with principles of fundamental justice. Later in his factum, Mr. Poshteh submits that the Charter and other documents \"are unanimous on the principle that the liability of a minor cannot simply mirror that of an adult but rather must provide special treatment.\"\n\nThe principles of fundamental justice in section 7 of the Charter are not independent self-standing notions. They are to be considered only when it is first demonstrated that an individual is being deprived of the right to life, liberty or security of the person. It is the deprivation that must be in accordance with the principles of fundamental justice. (See, for example, Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307 at paragraph 47.)", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-24", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 63–64", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "Here, all that is being determined is whether Mr. Poshteh is inadmissible to Canada on the grounds of his membership in a terrorist organization. The authorities are to the effect that a finding of inadmissibility does not engage an individual's section 7 Charter rights. (See, for example, Barrera v. Canada (MCI) (1992), 99 D.L.R. (4th) 264 (F.C.A.).) A number of proceedings may yet take place before he reaches the stage at which his deportation from Canada may occur. For example, Mr. Poshteh may invoke subsection 34(2) to try to satisfy the Minister that his presence in Canada is not detrimental to the national interest. Therefore, fundamental justice in section 7 of the Charter is not of application in the determination to be made under paragraph 34(1)(f) of the Act. CONCLUSION\n\nI would answer the certified question in the following manner: (a) section 7 of the Charter is not engaged in the determination to be made by the Immigration Division under paragraph 34(1)(f) of the Act; (b) the Convention on the Rights of the Child does not apply when the proceedings and decision involving an individual take place when the individual is no longer a minor; (c) an individual's status as a minor is relevant and there may be a distinction between a minor and an adult in the determination of whether the individual is a member of a terrorist organization under paragraph 34(1)(f) of the Act if the minor provides evidence to support such a distinction; and (d) in the present case, Mr. Poshteh's age was properly considered by the Immigration Division and it was open to the Immigration Division to determine that he was a member of a terrorist organization for purposes of paragraph 34(1)(f) of the Act.", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-32333-25", + "doc_type": "caselaw", + "act_code": "2005 FCA 85", + "act_short": "Poshteh", + "act_name": "Poshteh v. Canada (Minister of Citizenship and Immigration)", + "section": "", + "citation": "Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85", + "marginal_note": "paras 65–66", + "heading": "Inadmissibility for membership in a terrorist organization under IRPA s. 34(1)(f); relevance of the claimant's age", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division did not make unreasonable findings in concluding that Mr. Poshteh was inadmissible under paragraph 34(1)(f) of the Act. There was no error of law or palpable and overriding error of fact in the reasons of Gibson J.\n\nThe appeal should be dismissed with costs. \"Marshall Rothstein\" J.A. \"I agree Marc Noël, J.A.\" \"I agree B. Malone, J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2005-03-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/32333/index.do" + }, + { + "id": "fca-35576-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 1–5", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Jeremy Hinzman and Brandon Hughey voluntarily enlisted to serve in the United States military. During their time in the military, they developed an objection to the war in Iraq, resulting in their belief that it is illegal and immoral. After learning that their units would be deployed to Iraq, they deserted the military and came to Canada, where they made claims for refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (the “Board”) considered the claims of Mr. Hinzman and Mr. Hughey (collectively referred to in these Reasons as the “appellants”) for refugee status and held that the appellants are not Convention refugees or persons in need of protection, as set out in the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”). The Board therefore concluded that the appellants are not entitled to stay in Canada as refugees.\n\nIn the Federal Court, Mactavish J. dismissed applications for judicial review by the appellants and certified a question which appears later in these Reasons (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421).\n\nThe appellants now appeal to this Court. However, for the reasons that follow, I see no reason to depart from the conclusions of the Board and Mactavish J. that the appellants are not entitled to refugee status. Accordingly, I would dismiss the appeals.\n\nThese Reasons are given in respect of both appeals (A-182-06 and A-185-06). A copy will be placed in the file of each appeal. FACTS IN THE HINZMAN APPEAL", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 6–9", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In late 2000, Jeremy Hinzman enlisted for a four-year term in the U.S. Army. Mr. Hinzman’s decision to join the military was motivated both by the fact that the military would provide him with financial assistance that would allow him to attend university upon completion of his term of enlistment and by his belief that the Army had a higher or noble purpose of doing good things. He chose specifically to become an infantryman because he wanted “to experience the essence of the Army.”\n\nPrior to enlisting in the Army, Mr. Hinzman had apparently explored Buddhism. Nevertheless, at the outset of his military service, it appears he did not have any reservations about bearing arms or otherwise fulfilling his duties as a soldier.\n\nHowever, during basic training, Mr. Hinzman testified that he underwent a process of desentization intended to dehumanize the enemy that caused him to start to question his involvement with the military.\n\nAfter completing training, Mr. Hinzman was posted to Fort Bragg. Although he excelled as a soldier, Mr. Hinzman continued to question his impending involvement in combat. He testified before the Board that he had been “kind of living a double life,” outwardly indicating that he was a “soldier’s soldier” but inwardly developing concerns about killing. Ultimately, he concluded that he could not kill, and that all violence does is perpetuate more violence.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 10–11", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consequently, Mr. Hinzman applied on August 2, 2002 for reassignment to non-combat duties as a conscientious objector, in accordance with Army Regulation 600-43. Although he indicated on his application that he was not a member of a religious sect or organization, he noted that over the past few years, he had been discovering a world-view framed by the teachings of Buddhism, which led to his decision that he was unable to kill. He also stated in the application that in January 2002, he and his wife had begun attending meetings of The Religious Society of Friends, or Quakers, a church espousing pacifism. In accordance with the military’s conscientious objector procedures, within three days of submitting his application for conscientious objector status, Mr. Hinzman was reassigned to guard the entrance gate at the Fort Bragg base.\n\nFor reasons that are unclear, Mr. Hinzman’s first conscientious objector application was not dealt with on its merits. Accordingly, he submitted a new application in October 2002, after he had learned that his unit would be deployed to Afghanistan. Mr. Hinzman believed that the United States had a legitimate basis for going into Afghanistan because he was satisfied that there were links between the Taliban regime then in power in Afghanistan and al-Qaeda, the terrorist organization responsible for the September 11, 2001 attacks on the United States. Mr. Hinzman therefore went to Afghanistan, where he was assigned to kitchen duties because of his pending application for conscientious objector status.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 12–13", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "A hearing was held in respect of Mr. Hinzman’s conscientious objector application while he was in Afghanistan, on April 2, 2003. Although First Lieutenant Dennis Fitzgerald, who was appointed investigating officer, was satisfied that Mr. Hinzman sincerely opposes war on a philosophical, societal and intellectual level, he concluded that Mr. Hinzman did not meet the definition of conscientious objector, as outlined in Army Regulation 600-43, because Mr. Hinzman had indicated that while he was unable to conduct offensive operations in combat, he would conduct defensive and peacekeeping operations. The First Lieutenant therefore denied Mr. Hinzman’s conscientious objector application. First Lieutenant Fitzgerald also held that Mr. Hinzman was using his conscientious objector application to get out of the infantry, a conclusion based, in part, on the negative and apparently erroneous, inference drawn from the First Lieutenant’s belief that Mr. Hinzman did not claim conscientious objector status until after he learned he would be deployed to Afghanistan.\n\nAlthough Mr. Hinzman has complained about his inability to call witnesses at the hearing because the hearing was held in Afghanistan and the witnesses he would have called were in the United States, he did not request an adjournment of the hearing, as he was permitted to do under Army Regulation 600-43. Moreover, Mr. Hinzman chose not to exercise his right to appeal the First Lieutenant’s decision, indicating that upon returning to the United States he was worn down and felt there would be no point in pursuing the matter.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 14–18", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman subsequently returned to the United States and resumed his normal duties as an infantryman. In December 2003, he learned that his unit would be deployed to Iraq on January 16, 2004. He was determined, however, not to fight in Iraq because he believed the United States military action there to be illegal and immoral. Consequently, Mr. Hinzman decided to desert.\n\nMr. Hinzman, along with his wife and son, arrived in Canada on January 3, 2004 and filed for refugee status approximately three weeks later. His refugee claim was based on his beliefs described above.\n\nMr. Hinzman maintains that, if returned to the United States, he will be prosecuted for desertion and likely receive a sentence of one to five years in a military prison. FACTS IN THE HUGHEY APPEAL\n\nBrandon Hughey volunteered to join the U.S. Army on July 30, 2002 at the age of 17 years, while still a student in high school. He reported for duty on July 9, 2003. Like Mr. Hinzman, he enlisted for a period of four years. Mr. Hughey testified that he joined the military to access financial assistance that would enable him to go to college and because he believed that some things were worth fighting for.\n\nMr. Hughey learned of the war in Iraq while he was in basic training. Although he originally assumed the war in Iraq could be justified, his opinion changed over time, so that he too believed that the war in Iraq was illegal.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 19–21", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hughey testified that while on approved leave from his unit from November 20, 2003 to December 18, 2003 he conducted research about the U.S. military action in Iraq that further entrenched his opposition to the war. Upon his return to his duty station, Fort Hood, Mr. Hughey told his non-commissioned staff sergeant that he did not think the military action in Iraq was morally right and asked the staff sergeant for assistance in seeking a discharge from the military. Mr. Hughey was told to stop thinking so much, that he had signed a contract, and that there was nothing that the superior officer was going to do to help accommodate his request for a discharge. A similar appeal by Mr. Hughey to another superior officer on a later occasion elicited a similar response.\n\nThrough research on the internet, Mr. Hughey learned of an anti-war activist named Carl Rising-Moore who was willing to help soldiers escape the military. After Mr. Hughey contacted him in February 2004, Mr. Rising-Moore agreed to help Mr. Hughey get to Canada and explained that Mr. Hughey’s only option would be to apply for refugee status on his arrival.\n\nWhile Mr. Hughey and Mr. Rising-Moore were exchanging e-mails, Mr. Hughey learned that he would be deployed to Iraq. He therefore left his base and arrived in Canada with Mr. Rising-Moore on March 5, 2004. Mr. Hughey applied for refugee protection approximately one month later, on the basis that he had a well-founded fear of persecution in the United States because of his political opinion.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 22–24", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his testimony, Mr. Hughey stated his belief that if returned to the United States he would face one to five years in prison and that he might face a more severe sentence because the Army knew through interviews in Canada that he had sought asylum in another country. He also testified that in basic training his drill sergeants told the soldiers that they could be put to death for desertion. DECISIONS OF THE BOARD 1) Interlocutory Decision as to Admissibility of Evidence\n\nMr. Hinzman brought a preliminary motion before the Board to adduce evidence to establish that the war in Iraq is illegal under international law. He maintained that this evidence of illegality was relevant to his claim because it would bring him within paragraph 171 of the United Nations Handbook on Procedures and Criteria for Determining Refugee Status (the “Handbook”), a document treated as a “highly persuasive authority” in an assessment of whether an individual qualifies for refugee status: Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593 at page 659.\n\nParagraph 171 of the Handbook provides as follows: 171. Not every conviction, genuine though it may be, will constitute a sufficient reason for claiming refugee status after desertion or draft-evasion. It is not enough for a person to be in disagreement with his government regarding the political justification for a particular military action. Where, however, the type of military action, with which an individual does not wish to be associated, is condemned by the international community as contrary to basic rules of human conduct, punishment for desertion or draft-evasion could, in the light of all other requirements of the definition, in itself be regarded as persecution.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 25–28", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman argued before the Board that an illegal war constitutes a military action “condemned by the international community as contrary to basic rules of human conduct,” within the meaning of paragraph 171 of the Handbook, such that any punishment for deserting an illegal war would constitute persecution.\n\nThe Board disagreed. In its view, when paragraph 171 of the Handbook speaks of a military action contrary to basic rules of human conduct, it refers to specific acts the soldier would be expected to perform “on the ground,” not to the legality of the conflict as a whole. Accordingly, the Board concluded the illegality of the war in Iraq was not relevant to Mr. Hinzman’s claims and therefore refused to admit evidence directed to the issue.\n\nThe appellants are represented by the same counsel. Moreover, Mr. Hughey’s case was heard by the same Board member who had previously adjudicated the Hinzman case. In light of the Board’s preliminary evidentiary ruling in the Hinzman case, counsel for the appellants did not adduce evidence as to the illegality of the war in Iraq in the Hughey case. 2) Decisions as to the Merits of the Refugee Claims\n\nAlthough the Board issued separate Reasons in the Hinzman and Hughey cases, the claims in each case were dismissed on substantially the same basis. Therefore, I summarize the key holdings of the Board collectively.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 29–30", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Board first identified that there is a presumption in refugee law that states are capable of protecting their citizens. Likewise, the Board noted that there is a presumption that ordinary laws of general application, such as the U.S. laws relating to desertion, are not persecutory. After a detailed analysis, the Board concluded that the appellants had failed to rebut these presumptions of state protection and neutrality of laws and as such, their refugee claims could not succeed.\n\nThe Board also considered the appellants’ contention that the U.S. military action in Iraq involves serious violations of international humanitarian law which are condemned by the international community as contrary to basic rules of human conduct. The appellants argued that, because of these violations of international humanitarian law, paragraph 171 of the Handbook directs that any punishment for their refusal to participate in such conduct would amount to persecution. The Board rejected this argument after an extensive review of the evidence adduced to establish the “on the ground” conduct of the United States military in Iraq. According to the Board, the appellants failed to adduce sufficient evidence to show that if deployed to Iraq they would personally have been required to engage in conduct condemned by the international community as contrary to basic rules of human conduct.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", "marginal_note": "paras 31–32", "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, the Board considered whether the punishment the appellants would face upon return to the United States would amount to persecution. To establish this claim, the Board indicated that the appellants would have to show that the relevant provisions of the U.S. Uniform Code of Military Justice (“UCMJ”) would be applied to them in a discriminatory fashion or would amount to cruel or unusual treatment or punishment. Neither of these grounds, in the Board’s view, was made out by the appellants. Accordingly, the appellants’ applications for refugee status were rejected. DECISIONS OF THE FEDERAL COURT\n\nThe appellants sought judicial review of the Board’s decisions in the Federal Court. A central issue before Mactavish J. was the interpretation and application of paragraph 171 of the Handbook. The appellants argued that the Board had been wrong to exclude evidence of the Iraq war’s illegality as irrelevant to the appellants’ refugee claims, that the Board erred in finding that the appellants had not established that the violations of international humanitarian law committed by the American military in Iraq are systemic, and that the Board had applied too heavy a burden on the appellants to demonstrate that they would have been involved in unlawful acts had they gone to Iraq.", - "current_to": "2007-04-30", + "text": "Finally, the Board considered whether the punishment the appellants would face upon return to the United States would amount to persecution. To establish this claim, the Board indicated that the appellants would have to show that the relevant provisions of the U.S. Uniform Code of Military Justice (“UCMJ”) would be applied to them in a discriminatory fashion or would amount to cruel or unusual treatment or punishment. Neither of these grounds, in the Board’s view, was made out by the appellants. Accordingly, the appellants’ applications for refugee status were rejected. DECISIONS OF THE FEDERAL COURT\n\nThe appellants sought judicial review of the Board’s decisions in the Federal Court. A central issue before Mactavish J. was the interpretation and application of paragraph 171 of the Handbook. The appellants argued that the Board had been wrong to exclude evidence of the Iraq war’s illegality as irrelevant to the appellants’ refugee claims, that the Board erred in finding that the appellants had not established that the violations of international humanitarian law committed by the American military in Iraq are systemic, and that the Board had applied too heavy a burden on the appellants to demonstrate that they would have been involved in unlawful acts had they gone to Iraq.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 33–34", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "After extensive reasons, Mactavish J. rejected all of the appellants’ claims regarding paragraph 171. She held that in the case of a mere foot soldier, paragraph 171 refers only to “on the ground” conduct of the soldier in question, not to the legality of the war itself. Moreover, she concluded that the Board’s holding that violations of international humanitarian law by the American military in Iraq were not systemic or condoned by the state was a finding of fact reviewable on a standard of patent unreasonableness. In her view, the appellants were unsuccessful in impeaching the Board’s finding against this standard. Likewise, Mactavish J. was satisfied that the Board had applied the appropriate standard of proof in determining whether the appellants had demonstrated that they would have been involved in unlawful acts had they gone to Iraq.\n\nFinally, Justice Mactavish considered whether it was reasonable for the Board to find that the appellants had failed to rebut the presumption of state protection. She concluded that the Board’s decision was appropriate. In her view, because there is no internationally recognized right to conscientiously object to a particular war, other than in the circumstances specifically identified in paragraph 171 of the Handbook, which in her view were not made out in either of the present cases, the fact that the appellants may face prosecution upon return to the United States did not amount to a failure of state protection or to persecution on the basis of political opinion.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 35", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, Mactavish J. concluded that there was no basis for interfering with the decisions of the Board. She also certified the following question: When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook? RELEVANT STATUTORY PROVISIONS", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-13", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 36", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 95 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) confers refugee status on individuals who are Convention refugees, while section 96 of IRPA defines what constitutes a Convention refugee. The text of these sections is as follows: 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 95.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-14", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 36", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). (2) Est appelée personne protégée la personne à qui l’asile est conféré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. ANALYSIS 1) Introduction", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-15", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 37–38", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The certified question asks this Court to rule on whether evidence of the illegality of a military action is relevant to an analysis governed by paragraph 171 of the Handbook. However, to qualify for refugee status, the appellants would have to first satisfy the court that they sought, but were unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection. In my view, for the reasons that follow, the appellants are unable to satisfy this first criterion and therefore it is unnecessary to proceed to the second stage of the analysis where the certified question might become relevant. I would therefore decline to answer the certified question and would dismiss the appeals. 2) Standard of Review\n\nMactavish J. correctly identified that questions as to the adequacy of state protection are questions of mixed fact and law ordinarily reviewable against a standard of reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420 at paragraph 199, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421 at paragraph 186). As the discussion that follows will illustrate, I am of the view that the Board’s holding that the appellants failed to rebut the presumption of state protection was reasonable. 3) State Protection and Persecution", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-16", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 39", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In their Memoranda of Fact and Law, the appellants accept that to succeed in their claims for refugee status, they must come within the definition of “Convention refugee,” which is set out in section 96 of IRPA: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-17", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 40–41", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants argue that if they are returned to the United States, they will face one to five years in prison for deserting the military. This punishment, they say, amounts to persecution on the basis of their political opinion that the war in Iraq is illegal and immoral. Moreover, they maintain that because the alleged persecutor is the state itself, state protection from persecution is necessarily absent. Therefore, the appellants assert that they are Convention refugees.\n\nIn evaluating the appellants’ claims, the starting point must be the direction from the Supreme Court of Canada that refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protections of his home state. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 (“Ward”), La Forest J., speaking for the Court, explained this concept as follows: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. [Emphasis added.]", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-18", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 42", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants say they fear persecution if returned to the United States. However, to successfully claim refugee status, they must also establish that they have an objective basis for that fear: Ward at page 723. In determining whether refugee claimants have an objective basis for their fear of persecution, the first step in the analysis is to assess whether they can be protected from the alleged persecution by their home state. As the Supreme Court of Canada explained in Ward at page 722, “[i]t is clear that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient state protection is available, claimants will be unable to establish that their fear of persecution is objectively well-founded and therefore will not be entitled to refugee status. It is only where state protection is not available that the court moves to the second stage, wherein it considers whether the conduct alleged to be persecutory can provide an objective basis for the fear of persecution. If indeed the illegality of the war is relevant, it is at this second stage that the court would consider it. However, because I have determined that the appellants are unable to satisfy the first stage of the analysis, that is, that the United States is incapable of protecting them, it is unnecessary to consider the issues arising in the second stage, including the relevance of the legality of the Iraq war.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-19", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 43–45", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Ward, the Supreme Court explained at page 725 that in refugee law, there is a presumption of state protection: …nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.\n\nTo rebut the presumption, the Court stated that “clear and convincing confirmation of a state’s inability to protect must be provided”: Ward at page 724.\n\nIn Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that the more democratic a country, the more the claimant must have done to seek out the protection of his or her home state: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.]", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-20", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 46", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada. In Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 at page 176 (F.C.A.) (“Satiacum”) this Court was called upon to consider a claim of insufficient state protection in the United States and commented on the difficult task facing a claimant attempting to establish a failure of state protection in the United States: In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-21", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 47–48", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although the United States, like other countries, has enacted provisions to punish deserters, it has also established a comprehensive scheme complete with abundant procedural safeguards for administering these provisions justly. In particular, Army Regulation 600-43 formally recognizes the validity of conscientious objection to military service by providing conscientious objectors with exemptions from military service or alternatives to combat. Soldiers attempting to avail themselves of these exemptions from combat service are provided with numerous procedural protections, including the right to a hearing and a right of appeal. They are also transferred to non-combat positions upon the making of an application, a provision from which Mr. Hinzman benefited when he was assigned to act as a guard at the entrance of the Fort Bragg base and to kitchen duties for the duration of his deployment in Afghanistan.\n\nFurthermore, while punishment for desertion can include imprisonment, the evidence indicates that the vast majority of Army deserters in the United States have not been prosecuted or court-martialled. Rather, approximately 94% of deserters have been dealt with administratively and merely receive a less-than-honourable discharge from the military (Exhibit M-5, Appeal Book at page 2420).", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-22", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 49–50", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Board found that no evidence had been brought forward to establish that the appellants would not be afforded the full protection of the law if they were court-martialled in the United States. It concluded that if the appellants were court-martialled, they would be subjected to a sophisticated military justice system that respects the rights of the service person, guarantees appellate review and provides a limited access to the U.S. Supreme Court, as outlined in the UCMJ and the Manual for Courts-Martial of the United States.\n\nNeither Mr. Hinzman nor Mr. Hughey made an adequate attempt to avail himself of the protections afforded by the United States. Although Mr. Hinzman applied for conscientious objector status, he did not avail himself of all the recourses available to him. In particular, he failed to take advantage of his right to request an adjournment of the hearing respecting his conscientious objector application until his return to the United States, where he would be able to call appropriate witnesses, and to avail himself of his right of appeal from a negative decision at first instance. Like the Board, I find that it was not unreasonable to expect that Mr. Hinzman would have pursued further his request for conscientious objector status after learning that First Lieutenant Fitzgerald had found against him.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-23", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 51–53", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Unlike Mr. Hinzman, Mr. Hughey did not apply for conscientious objector status, nor did he take any other formal steps to avoid combat service contrary to his political views. Mr. Hughey’s attempts to avail himself of protections available in the United States appear to be limited to the discussions he had with his superior officers about the possibility of obtaining a discharge from the military, in which he was told that such a discharge was not available. He apparently did not seek any other advice, for example from a chaplain or a lawyer, about the options available to him.\n\nRather than attempt to take advantage of the protections potentially available to them in the United States, the appellants came to Canada and claimed refugee status. As the Supreme Court of Canada directed in Ward, however, refugee protection is not available where there has been an inadequate attempt to seek out the protections available in one’s home country.\n\nThe appellants challenge this reasoning, arguing that evidence of the state’s failure to protect is unnecessary where the state is the agent of persecution. They cite Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 at paragraph 19 (F.C.T.D.), for the proposition that when the state is persecuting the claimants, state protection is, by definition, absent. They note that in Ward, at issue were the actions of a non-state entity that was allegedly persecuting the claimant. According to the appellants, only in that situation is it appropriate for the Court to inquire into whether the state was able to protect the refugee claimant from his persecutor.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-24", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 54", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the concepts of persecution and state protection are interconnected such that the question of whether the refugee claimant has attempted to avail himself of the protective mechanisms provided by the state is relevant both where the alleged persecutor is an organ of the state and where the alleged persecutor is a non-state entity. The central feature of the refugee protection scheme is that the refugee claimant has a fear of persecution that is objectively well-founded (Ward at page 723). Where the claimant alleges that he is being persecuted by the state itself, the inquiry into the availability of state protection goes to the question of whether the claimant has an objective basis for his fear of persecution. If effective state protection for religious or political beliefs is available to the claimant, it can hardly be said that there is a serious possibility of persecution by the state sufficient to make his fear of persecution objectively well-founded. The presumption of state protection described in Ward, therefore, applies equally to cases where an individual claims to fear persecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States. We must respect the ability of the United States to protect the sincerely held beliefs of its citizens. Only where there is clear and convincing evidence that such protections are unavailable or ineffective such that state conduct amounts to persecution will this country be able to extend its refugee protections to the claimants.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-25", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 55", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "A second contention made by the appellants is that Ward requires refugee claimants to seek out protections provided by their home countries only if that protection can be said to “reasonably have been forthcoming.” In their assessment, the protections provided to the appellants by the United States would not meet this threshold. They say that the American approach to conscientious objection does not protect those who only object to specific wars, rather than to all wars. The appellants argue that because they fall into the former category, it cannot be said that protection from the United States “might reasonably have been forthcoming” to them such that they should have attempted to avail themselves of such procedures. Moreover, the appellants submit that they would be unable to challenge the legality of the Iraq war in a U.S. court because of the U.S. political questions doctrine which, they claim, renders such issues non-justiciable. In light of this doctrine the appellants say that their only option would be to appeal to the Executive, an illusory recourse, in their view, because it was the Executive that chose to go to war in Iraq.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-26", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 56", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "I cannot agree. A careful reading of Ward illustrates that when the Supreme Court of Canada adopted the test formulated by Professor Hathaway (that only in situations in which state protection “might reasonably have been forthcoming” will the claimant’s failure to approach the state for protection defeat his claim), the Court did not intend that refugee claimants would easily be able to avoid the requirement that they approach their home countries for protection before seeking international refugee protection. La Forest J. clarifies in the next sentence of his Reasons, at page 724, that the test is meant to be an objective one: …the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities...", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-27", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 57", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Kadenko and Satiacum together teach that in the case of a developed democracy, the claimant is faced with the burden of proving that he exhausted all the possible protections available to him and will be exempted from his obligation to seek state protection only in the event of exceptional circumstances: Kadenko at page 534, Satiacum at page 176. Reading all these authorities together, a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status. In view of the fact that the United States is a democracy that has adopted a comprehensive scheme to ensure those who object to military service are dealt with fairly, I conclude that the appellants have adduced insufficient support to satisfy this high threshold. Therefore, I find that it was objectively unreasonable for the appellants to have failed to take significant steps to attempt to obtain protection in the United States before claiming refugee status in Canada.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-28", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 58", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the circumstances, it is difficult to conclude, without clear evidence of the appellants’ experiences to the contrary, that the appellants would have inadequate protection for their beliefs in the United States. Mr. Hinzman’s objections to combat transcend the war in Iraq and are grounded at least in part in his religious and spiritual beliefs. He may therefore very well have qualified as a conscientious objector had he pursued his application fully. Mr. Hughey may have more difficulty in seeking conscientious objector status because he objects only to the specific military action in Iraq on political grounds. Without evidence of his attempts to obtain such protection, however, it is impossible to know how he would have fared. In any event, conscientious objector discharges are not the only means by which soldiers can obtain early release from the military. Statistics adduced by the Crown indicate that approximately 94% of deserters from the U.S. Army have not faced prosecution and imprisonment, but have merely been dealt with administratively by being released from the military with a less-than-honourable discharge. Arguably, the chance of receiving an administrative discharge will be even higher for those who attempt to negotiate a discharge before deserting their units. Contrary to the appellants’ assertions, therefore, these statistics suggest that appeal to the Executive is not an illusory recourse.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-29", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 59", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "In oral argument, counsel for the appellants disputed the statistics relating to punishment for deserters on the basis that they were computed prior to the commencement of the most recent U.S. military action in Iraq. However, he could not point us to any contrary evidence. Moreover, there is reason to believe the statistics would not have changed materially. As Lord Hoffman noted in Sepet v. Secretary of State for the Home Department, [2003] UKHL 15 at paragraph 44 (H.L.), soldiers who conscientiously object to combat may do more harm than good because their unwillingness to participate voluntarily may make them ineffective in combat and because they are likely to be articulate individuals who will attempt to spread their beliefs among their colleagues. It therefore may be in the best interests of the military to accommodate those who object to combat by merely discharging them from service.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-30", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "para 60", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, while the Board said that the appellants would likely face one to five years imprisonment if returned to the United States, this can only be an opinion as to what U.S. courts would do. It is important to note that the Board’s Reasons did not consider all of the important evidence. In particular, the Reasons make no reference to the statistic that the vast majority of deserters are not prosecuted, let alone jailed for their conduct. As Justice Evans identified in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17 (F.C.T.D.), a court will be reluctant to defer to a tribunal’s decision where the tribunal’s reasons consider in detail the evidence supporting its conclusions, but do not refer to important evidence pointing to a different conclusion: [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-31", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 61–62", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although the Board considered evidence suggesting that the appellants would be imprisoned for desertion if returned to the United States, it failed to make reference to the critical statistic that most deserters have not been imprisoned. This failure on the part of the Board suggests that its opinion regarding the punishment the appellants will potentially face upon return to the United States was made without regard to the material before it and therefore the Board’s opinion cannot be relied upon. 4) Conclusion\n\nIn conclusion, the appellants have failed to satisfy the fundamental requirement in refugee law that claimants seek protection from their home state before going abroad to obtain protection through the refugee system. Several protective mechanisms are potentially available to the appellants in the United States. Because the appellants have not adequately attempted to access these protections, however, it is impossible for a Canadian court or tribunal to assess the availability of protections in the United States. Accordingly, the appellants’ claims for refugee protection in Canada must fail. CLAIMS OF MR. HINZMAN’S WIFE AND SON", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35576-32", + "doc_type": "caselaw", + "act_code": "2007 FCA 171", + "act_short": "Hinzman", + "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", + "marginal_note": "paras 63–64", + "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hinzman’s wife, Nga Thi Nguyen, and son, Liam Liem Nguyen Hinzman, also claimed refugee status on the basis of membership in a particular social group, namely, Mr. Hinzman’s immediate family. Although they are named as appellants in the Hinzman appeal, no arguments were addressed to them in the Memorandum of Fact and Law filed in respect of that appeal or in oral argument. Moreover, the Order sought in the Hinzman appeal refers to the “Appellant,” in the singular, thereby apparently referring only to Mr. Hinzman. In these circumstances, I adopt the conclusions of the Board: The adult claimants adduced no evidence that Nga Thi Nguyen or Liam Liem Nguyen Hinzman would face a serious possibility of persecution or other serious harm as a result of being part of Mr. Hinzman’s family, even were he to receive a term of imprisonment for his desertion. They relied on the evidence of Mr. Hinzman, with whose claim theirs were joined. Since Mr. Hinzman has failed to establish his claim, their claims must also fail. DISPOSITION\n\nFor the foregoing reasons, I would refrain from answering the certified question and I would dismiss the appeals. \"J. Edgar Sexton\" J.A. \"I agree Robert Décary J.A.\" \"I agree John M. Evans J.A.\" FEDERAL COURT OF APPEAL", + "current_to": "2007-04-30", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + }, + { + "id": "fca-35611-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 1–3", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.\n\nThis appeal concerns the validity of Guideline 7 (Preparation and Conduct of a Hearing in the Refugee Protection Division), issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines … to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances” (para. 23).\n\nThe validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 4–6", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal by the Minister of Citizenship and Immigration from a decision by Justice Blanchard of the Federal Court granting an application for judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.\n\nJustice Blanchard held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing, in the absence of a provision in either IRPA or the Refugee Protection Division Rules, SOR/2002-228, dealing with this aspect of refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be determined by a different member of the RPD on the basis that Guideline 7 is an invalid fetter on the exercise of decision-makers’ discretion.\n\nHowever, Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is invalid because it deprives refugee claimants of the right to a fair hearing, and distorts the “judicial” role of the member hearing the claim. Mr Thamotharem has cross-appealed this finding.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 7–9", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Judge certified the following questions for appeal pursuant to paragraph 74(d) of IRPA. 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? 3. Does a finding that Guideline 7 fetters a Refugee Protection Division Member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?\n\nImmediately after hearing the Minister’s appeal in Thamotharem, we heard appeals by unsuccessful refugee claimants challenging the validity of Guideline 7 and, in some of the cases, impugning on other grounds the dismissal of their claim. In the Federal Court, 19 applications for judicial review concerning Guideline 7 were consolidated. Justice Mosley’s decision on the Guideline 7 issue is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals from these decisions were also consolidated, Benitez being designated the lead case.\n\nIn Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard on all issues, except one: he held that Guideline 7 was not an unlawful fetter on the discretion of Board members because its text permitted them to allow the claimant’s counsel to question first, as, in fact, some had.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 10–12", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. I also agree that Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form.\n\nHowever, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. The evidence does not establish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of the facts of the case before them. Accordingly, I agree with Justice Mosley on this issue, and must respectfully disagree with Justice Blanchard.\n\nNor does it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure that it is invalid because it was not approved by the Governor in Council. In my opinion, the Chairperson’s rule-making power does not invalidate Guideline 7 by impliedly excluding from the broad statutory power to issue guidelines “to assist members in carrying out their duties” changes to the procedure of any of the Board���s Divisions.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 13–16", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal and his application for judicial review. Although separate reasons are given in Benitez (2007 FCA 199) dealing with issues not raised in Mr Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted in Court File No. A-164-06 (Benitez) and the files of the appeals consolidated with it. B. FACTUAL BACKGROUND (i) Mr Thamotharem’s refugee claim\n\nMr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September 2002 on a student visa. In January 2004, he made a claim for refugee protection in Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam.\n\nIn written submissions to the RPD before his hearing, Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing if he were questioned first by the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing. There was no evidence that Mr Thamotharem suffered from post-trauma stress disorder, or was otherwise particularly vulnerable.\n\nAt the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem first. The RPD held that the duty of fairness does not require that refugee claimants always have the right to be questioned first by their counsel and that the application of Guideline 7 does not breach Mr Thamotharem’s right to procedural fairness.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 17–18", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.\n\nIn his application for judicial review, Mr Thamotharem challenged this decision on the ground that Guideline 7 was invalid, and that the RPD had made a reviewable error in its determination of the merits of his claim. As already noted, Mr Thamotharem’s application for judicial review was granted, the RPD’s decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing. In responding in this Court to the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7 is valid, Justice Blanchard was correct to remit the matter to the RPD because it committed a reviewable error in determining the merits of the claim. (ii) Guideline 7", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 19–20", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it. Refugee protection claims are normally determined by a single member of the RPD. The evidence indicated that, before the issue of Guideline 7, practice on the order of questioning was not uniform across Canada. Members sitting in Toronto and, possibly, in Vancouver and Calgary, permitted claimants to be “examined in chief” by their counsel before being questioned by the RPO and/or the member. In Montreal and Ottawa, on the other hand, the practice seems to have been that the member or the RPO questioned the claimant first, although a request by counsel for a claimant to question first seems generally to have been granted.\n\nIt is not surprising that the Board did not regard it as satisfactory that the order of questioning was left to be decided by individual members on an ad hoc basis, with variations among regions, and among members within a region. Claimants are entitled to expect essentially the same procedure to be followed at an RPD hearing, regardless of where or by whom the hearing is conducted.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 21", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "There was also a view that refugee protection hearings would be more expeditious if claimants were generally questioned first by the RPO or the member, thus dispensing with the often lengthy and unfocussed examination-in-chief of claimants by their counsel. The backlog of refugee determinations has been a major problem for the Board. For example, from 1997-98 to 2001-02 the number of claims referred for determination each year increased steadily from more than 23,000 to over 45,000, while, in the same period, the backlog of claims referred but not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration and Refugee Board, Performance Report, for the period ending March 31, 2004.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 22", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Studies were undertaken to find ways of tackling this problem. For example, in a relatively early report, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee law scholar, Professor James C. Hathaway, made many recommendations designed to make the Board’s determination of refugee claims more effective, expeditious, and efficient. The following passage from the Report (at 74) is particularly relevant to the present appeal. The present practice of an introductory “examination in chief” by counsel should be dispensed with, the sworn testimony in the Application for Refugee Status being presumed to be true unless explicitly put in issue. Panel members should initially set out clearly the substantive matters into which they wish to inquire, and explain any concerns they may have about the sufficiency of documentary evidence presented. Members should assume primary responsibility to formulate the necessary questions, although they should feel free to invite counsel to adduce testimony in regard to matters of concern to them. Once the panel has concluded its questioning, it should allow the Minister’s representative, if present, an opportunity to question or call evidence, ensuring that the tenor of the Ministerial intervention is not allowed to detract from the non-adversarial nature of the hearing. Following a brief recess, the panel should outline clearly on the record which matters it views as still in issue, generally using the Conference Report as its guide. Any matters not stated by the panel to be topics of continuing concern should be deemed to be no longer in issue.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 22–25", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel would then be invited to elicit testimony, call witnesses, and make submissions as adjudged appropriate, keeping in mind that all additional evidence must be directed to a matter which remains in issue. [footnotes omitted]\n\nStarting in 1999, the Board worked to develop what became Guideline 7, which was finally issued in October 31, 2003, as part of an action plan to reduce the backlog on the refugee side by increasing the efficiency of its decision-making process. In addition to the order of questioning provisions in dispute in this case, Guideline 7 also deals with the early identification of issues and disclosure of documents, procedures when a claimant is late or fails to appear, informal pre-hearing conferences, and the administration of oaths and affirmations.\n\nIn addition to the consultations with the Deputy Chairperson and the Director General of the Immigration Division mandated by paragraph 159(1)(h) before the Chairperson issues a guideline, the Board held consultations on the proposed Guideline with members of the Bar and other “stakeholders”. Some, however, including the Canadian Council for Refugees, an intervener in this appeal, regarded the consultations as less than meaningful, while others characterized Guideline 7 as an overly “top-down” initiative by senior management of the Board. On the basis of the material before us, I am unable to comment on either of these observations.\n\nFrom December 1, 2003, the implementation of Guideline 7 was gradually phased in, becoming fully operational across the country by June 1, 2004. Like other guidelines issued by the Chairperson, Guideline 7 was published. C. LEGISLATIVE FRAMEWORK (i) IRPA", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-11", + "id": "fca-35611-11", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 33–34", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 26", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "After extensive reasons, Mactavish J. rejected all of the appellants’ claims regarding paragraph 171. She held that in the case of a mere foot soldier, paragraph 171 refers only to “on the ground” conduct of the soldier in question, not to the legality of the war itself. Moreover, she concluded that the Board’s holding that violations of international humanitarian law by the American military in Iraq were not systemic or condoned by the state was a finding of fact reviewable on a standard of patent unreasonableness. In her view, the appellants were unsuccessful in impeaching the Board’s finding against this standard. Likewise, Mactavish J. was satisfied that the Board had applied the appropriate standard of proof in determining whether the appellants had demonstrated that they would have been involved in unlawful acts had they gone to Iraq.\n\nFinally, Justice Mactavish considered whether it was reasonable for the Board to find that the appellants had failed to rebut the presumption of state protection. She concluded that the Board’s decision was appropriate. In her view, because there is no internationally recognized right to conscientiously object to a particular war, other than in the circumstances specifically identified in paragraph 171 of the Handbook, which in her view were not made out in either of the present cases, the fact that the appellants may face prosecution upon return to the United States did not amount to a failure of state protection or to persecution on the basis of political opinion.", - "current_to": "2007-04-30", + "text": "IRPA confers on the Chairperson of the Board broad powers over the management of each Division of the Board, including a power to issue guidelines. 159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (a) has supervision over and direction of the work and staff of the Board; … (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay; (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; … 159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre : a) il assure la direction et contrôle la gestion des activités et du personnel de la Commission; […] g) il prend les mesures nécessaires pour que les commissaires remplissent leurs fonctions avec diligence et efficacité; h) après consultation des vice-présidents et du directeur général de la Section de l’immigration et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel; […]", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-12", + "id": "fca-35611-12", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 35", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 27", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Accordingly, Mactavish J. concluded that there was no basis for interfering with the decisions of the Board. She also certified the following question: When dealing with a refugee claim advanced by a mere foot soldier, is the question whether a given conflict may be unlawful in international law relevant to the determination which must be made by the Refugee Division under paragraph 171 of the UNHCR Handbook? RELEVANT STATUTORY PROVISIONS", - "current_to": "2007-04-30", + "text": "IRPA also empowers the Chairperson of the Board to make rules for each of the three Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament. 161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules. (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council. 161.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-13", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 27–28", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant : a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents; b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite; c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie; d) toute autre mesure nécessitant, selon lui, la prise de règles. (2) Le ministre fait déposer le texte des règles devant chacune des chambres du Parlement dans les quinze premiers jours de séance de celle-ci suivant leur agrément par le gouverneur en conseil.\n\nIRPA emphasises the importance of informality, promptness and fairness in the Board’s proceedings. 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-14", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 29", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "In keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad discretion on members in their conduct of a hearing. 165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 165. La Section de la protection des réfugiés et la Section de l’immigration et chacun de ses commissaires sont investis des pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-15", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 30", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Part I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers commissioners of inquiry as follows: 4. The commissioners have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. 5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. 4. Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de : a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile; b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés. 5. Les commissaires ont, pour contraindre les témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en matière civile.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-16", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 31", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "The following provisions of IRPA respecting the decision-making process of the RPD are also relevant. 170. The Refugee Protection Division, in any proceeding before it, (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; … (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; … 170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande; […] g) n’est pas liée par les règles légales ou techniques de présentation de la preuve; h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; […] (ii) Guideline 7", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-17", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 32", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraphs 19 and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h), are of immediate relevance in this appeal, while paragraphs 20-22 provide context. 19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case. 20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant. 21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 23. The member may vary the order of questioning in exceptional circumstances.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-18", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 32", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. 19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas. 20. Dans les demandes d'asile où l'intervention du ministre porte sur une question autre que l'exclusion, la crédibilité par exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire; viennent ensuite le conseil du ministre puis le conseil du demandeur d'asile. 21. Dans les demandes où l'intervention du ministre porte sur la question de l'exclusion, le conseil du ministre interroge d'abord le demandeur d'asile; il est suivi de l'APR, du commissaire, puis du conseil du demandeur d'asile. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l'audience s'il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 22.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-19", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 32–33", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dans les demandes d’annulation ou de constat de perte d’asile présentées par le ministre, le conseil du ministre commence l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne protégée. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l’audience s’il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR. D. ISSUES AND ANALYSIS Issue 1: Standard of review\n\nThe questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness. Issue 2: Does Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right to procedural fairness?", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-20", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 34–35", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded that the jurisprudence did not require that, as a matter of fairness, claimants always be given the opportunity to be questioned first by their counsel (at paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”), for determining where to locate refugee protection hearings on the procedural spectrum from the informal to the judicial. Largely on the basis of the adjudicative nature of the RPD’s functions, the finality of its decision, and the importance of the individual rights at stake, he concluded (at para. 75) that “a higher level of procedural protection is warranted”.\n\nHowever, recognizing also that the content of the duty of fairness varies with context, Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model for the determination of refugee claims by the RPD, in the sense that there is no party opposing the claim, except in the rare cases when the Minister intervenes to oppose a claim on exclusion grounds. Consequently, in the overwhelming majority of cases, the task of probing the legitimacy of claims inevitably falls to the RPO, who questions the claimant on behalf of the member, and/or to the member of the RPD conducting the hearing, especially when no RPO is present. This is an important reason for concluding that not all the elements of the adversarial procedural model followed in the courts are necessarily required for a fair hearing of a refugee claim: see paras. 72-75.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-21", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 36–37", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard also acknowledged that claimants may derive tactical advantages from being taken through their story by their own lawyer before being subjected to questioning by the RPO, who will typically focus on inconsistencies, gaps, and improbabilities in the narrative found in the claimant’s personal information form (“PIF”) and any supporting documentation, as well as any legal weaknesses in the claim. The tactical advantage of questioning first may be particularly significant in refugee hearings because of the vulnerability and anxiety of many claimants, as a result of: their inability to communicate except through an interpreter; their cultural backgrounds; the importance for them of the RPD’s ultimate decision; and the psychological effects of the harrowing events experienced in their country of origin.\n\nNonetheless, Justice Blanchard concluded that these considerations do not necessarily rise to the level of unfairness. Indeed, in addition to shortening the hearing, questioning by the RPO may also serve to improve the quality of the hearing by focusing it and enabling a claimant’s counsel to make sure that aspects of the claim troubling the member are fully dealt with when the claimant comes to tell his or her story. Consequently, in order to be afforded their right to procedural fairness, claimants need not normally be given the opportunity to be questioned by their counsel before being questioned by the RPO and/or RPD member.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-22", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 38–39", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Blanchard noted, for example, that RPD members receive training to sensitize them to the accommodations needed when questioning vulnerable claimants, that claimants may supplement or modify the information in their PIF and adduce evidence before the hearing, and that expert evidence indicated that vulnerable claimants’ ability to answer questions fully, correctly and clearly is likely to depend more on the tone and style of questioning than on the order in which it occurs.\n\nMoreover, the duty of fairness forbids members from questioning in an overly aggressive and badgering manner, or in a way that otherwise gives rise to a reasonable apprehension of bias. Fairness also requires that claimants be given an adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it. To this end, fairness may also require that, in certain circumstances, a claimant be afforded the right to be questioned first by her or his counsel. In addition, Guideline 7 recognizes that there will be exceptional cases in which, even though not necessarily required by the duty of fairness, it will be appropriate for the RPD to depart from the standard order of questioning.", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-35611-23", + "doc_type": "caselaw", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 40–42", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree with Justice Blanchard’s conclusion on this issue and have little useful to add to his reasons. Before us, counsel did not identify any error of principle in the Applications Judge’s analysis nor produce any binding judicial authority for the proposition that it is a breach of the duty of fairness to deny claimants the right to be questioned first by their own counsel. Criticisms were directed more to the weight that Justice Blanchard gave to some of the evidence and the factors to be considered. I can summarize as follows the principal points made in this Court by counsel.\n\nFirst, the importance of the individual rights potentially at stake in refugee protection proceedings indicates a court-like hearing, in which the party with the burden of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993), 69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament, as well as the RPD’s high volume case load, considerations which reduce the power of the claim to aspects of the adversarial model used in courts, including the order of questioning.\n\nSecond, the procedure set out in Guideline 7 is derived from the erroneous notion that the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries, refugee claimants have the burden of proving a claim, which the RPD adjudicates.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-13", + "id": "fca-35611-24", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 36", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 43–44", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Section 95 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”) confers refugee status on individuals who are Convention refugees, while section 96 of IRPA defines what constitutes a Convention refugee. The text of these sections is as follows: 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), and whose claim or application has not subsequently been deemed to be rejected under subsection 108(3), 109(3) or 114(4). 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 95.", - "current_to": "2007-04-30", + "text": "I do not agree. The Board correctly recognizes that the RPD’s procedural model is more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 82). I cannot conclude on the basis of the evidence as a whole that the Board adopted the standard order of questioning in the mistaken view that the RPD is a board of inquiry, even though it decides claimants’ legal rights in the cases which they bring to it for adjudication and claimants bear the burden of proof. This conclusion is not undermined by a training document (“Questioning 101”), prepared by the Board’s Professional Development Branch in 2004 for members and RPOs, which contains a somewhat misleading reference to the compatibility of the standard order of questioning with “a board of inquiry model”.\n\nA relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, especially before inexperienced tribunal members or those who lack the confidence that legal training can give. Nonetheless, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process, where the order of questioning is not as obvious as it generally is in an adversarial hearing.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-14", + "id": "fca-35611-25", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 36", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 45–47", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). (2) Est appelée personne protégée la personne à qui l’asile est conféré et dont la demande n’est pas ensuite réputée rejetée au titre des paragraphes 108(3), 109(3) ou 114(4). 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. ANALYSIS 1) Introduction", - "current_to": "2007-04-30", + "text": "Third, placing RPD members in the position of asking the claimant questions first, when no RPD is present, distorts their judicial role by thrusting them into the fray, thereby creating a reasonable apprehension of bias by making them appear to be acting as both judge and prosecutor. Guideline 7 is particularly burdensome for members now that panels normally comprise a single member, and there is often no RPO present to assume the primary responsibility for questioning the claimant on behalf of the Board.\n\nI disagree. Adjudicators can and should normally play a relatively passive role in an adversarial process, because the parties are largely responsible for adducing the evidence and arguments on which the adjudicator must decide the dispute. In contrast, members of the RPD, sometimes assisted by an RPO, do not have this luxury. In the absence in most cases of a party to oppose the claim, members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim: see IRPA, paragraph 170(a); Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the member or the RPO may ask probing questions does not make the proceeding adversarial in the procedural sense.\n\nTo the extent that statements in Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of the RPD hearing a refugee claim is restricted to asking the kind of questions that a judge in a civil or criminal proceeding may ask, they are, in my respectful opinion, incorrect, especially when no RPO is present.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-15", + "id": "fca-35611-26", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 37–38", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 48–50", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The certified question asks this Court to rule on whether evidence of the illegality of a military action is relevant to an analysis governed by paragraph 171 of the Handbook. However, to qualify for refugee status, the appellants would have to first satisfy the court that they sought, but were unable to obtain, protection from their home state, or alternatively, that their home state, on an objective basis, could not be expected to provide protection. In my view, for the reasons that follow, the appellants are unable to satisfy this first criterion and therefore it is unnecessary to proceed to the second stage of the analysis where the certified question might become relevant. I would therefore decline to answer the certified question and would dismiss the appeals. 2) Standard of Review\n\nMactavish J. correctly identified that questions as to the adequacy of state protection are questions of mixed fact and law ordinarily reviewable against a standard of reasonableness (Hinzman v. Canada (Minister of Citizenship and Immigration), 2006 FC 420 at paragraph 199, Hughey v. Canada (Minister of Citizenship and Immigration), 2006 FC 421 at paragraph 186). As the discussion that follows will illustrate, I am of the view that the Board’s holding that the appellants failed to rebut the presumption of state protection was reasonable. 3) State Protection and Persecution", - "current_to": "2007-04-30", + "text": "The fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of a person who was informed of the facts and had thought the matter through in a practical manner. Inquisitorial processes of adjudication are not unfair simply because they are relatively unfamiliar to common lawyers.\n\nFourth, Guideline 7 interferes with claimants’ right to the assistance of counsel because it prevents them from being taken through their story by their counsel before being subject to the typically more sceptical questioning by the RPO. I do not agree. Guideline 7 does not curtail counsel’s participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or, for that matter, any other aspect of the procedure to be followed at the hearing.\n\nFinally, no statistical evidence was adduced to support the allegation that Guideline 7 jeopardizes the ability of the RPD accurately to determine claims for refugee protection. There is simply no evidence to establish what impact, if any, the introduction of Guideline 7 has had on acceptance rates.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-16", + "id": "fca-35611-27", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 39", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 51–53", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "In their Memoranda of Fact and Law, the appellants accept that to succeed in their claims for refugee status, they must come within the definition of “Convention refugee,” which is set out in section 96 of IRPA: 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. 96. A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.", - "current_to": "2007-04-30", + "text": "In summary, the procedure prescribed by Guideline 7 is not, on its face, in breach of the Board’s duty of fairness. However, in some circumstances, fairness may require a departure from the standard order of questioning. In those circumstances, a member’s refusal of a request that the claimant be questioned first by her counsel may render the determination of the claim invalid for breach of the duty of fairness.\n\nConsequently, if the Chairperson had implemented the reform to the standard order of questioning at refugee determination hearings in a formal rule of procedure issued in accordance with paragraph 161(1)(a), it would have been beyond challenge on the grounds advanced in this appeal respecting the duty of fairness, including bias. The somewhat technical question remaining is whether the Chairperson’s choice of legislative instrument (that is, a guideline rather than a formal rule of procedure) to implement the procedural change was in law open to him. Issue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?\n\nAs already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached different conclusions on whether Guideline 7 unlawfully fettered the discretion of members of the RPD in deciding the order of questioning at a refugee determination hearing. The records in the two applications were not identical. In particular, there was more evidence before Justice Mosley, comprising some forty decisions and excerpts from transcripts of RPD hearings, that RPD members are willing to recognize exceptional cases in which it is appropriate to depart from the standard order of questioning.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-17", + "id": "fca-35611-28", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 40–41", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 54–55", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants argue that if they are returned to the United States, they will face one to five years in prison for deserting the military. This punishment, they say, amounts to persecution on the basis of their political opinion that the war in Iraq is illegal and immoral. Moreover, they maintain that because the alleged persecutor is the state itself, state protection from persecution is necessarily absent. Therefore, the appellants assert that they are Convention refugees.\n\nIn evaluating the appellants’ claims, the starting point must be the direction from the Supreme Court of Canada that refugee protection is meant to be a form of surrogate protection to be invoked only in those situations where the refugee claimant has unsuccessfully sought the protections of his home state. In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 709 (“Ward”), La Forest J., speaking for the Court, explained this concept as follows: At the outset, it is useful to explore the rationale underlying the international refugee protection regime, for this permeates the interpretation of the various terms requiring examination. International refugee law was formulated to serve as a back-up to the protection one expects from the state of which an individual is a national. It was meant to come into play only in situations when that protection is unavailable, and then only in certain situations. The international community intended that persecuted individuals be required to approach their home state for protection before the responsibility of other states becomes engaged. [Emphasis added.]", - "current_to": "2007-04-30", + "text": "In the circumstances of these appeals, it is appropriate to consider all the evidence before both judges. From a practical point of view, it would be anomalous if this Court were to reach different conclusions about the validity of Guideline 7 in two cases set down to be heard one after the other. However, I do not attach much, if any, significance to the differences in the records. Justice Blanchard properly based his conclusion, for the most part, on what he saw as the mandatory language of Guideline 7. (i) Rules, discretion and fettering\n\nEffective decision-making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-18", + "id": "fca-35611-29", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 42", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 56–57", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The appellants say they fear persecution if returned to the United States. However, to successfully claim refugee status, they must also establish that they have an objective basis for that fear: Ward at page 723. In determining whether refugee claimants have an objective basis for their fear of persecution, the first step in the analysis is to assess whether they can be protected from the alleged persecution by their home state. As the Supreme Court of Canada explained in Ward at page 722, “[i]t is clear that the lynch-pin of the analysis is the state’s inability to protect: it is a crucial element in determining whether the claimant’s fear is well-founded.” [Emphasis in original.] Where sufficient state protection is available, claimants will be unable to establish that their fear of persecution is objectively well-founded and therefore will not be entitled to refugee status. It is only where state protection is not available that the court moves to the second stage, wherein it considers whether the conduct alleged to be persecutory can provide an objective basis for the fear of persecution. If indeed the illegality of the war is relevant, it is at this second stage that the court would consider it. However, because I have determined that the appellants are unable to satisfy the first stage of the analysis, that is, that the United States is incapable of protecting them, it is unnecessary to consider the issues arising in the second stage, including the relevance of the legality of the Iraq war.", - "current_to": "2007-04-30", + "text": "Though the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 121 D.L.R. (4th) 79 (Ont. C.A.) at 83 (“Ainsley”).\n\nBoth academic commentators and the courts have emphasized the importance of these tools for good public administration, and have explored their legal significance. See, for example, Hudson N. Janisch, “The Choice of Decision-Making Method: Adjudication, Policies and Rule-Making” in Special Lectures of the Law Society of Upper Canada 1992, Administrative Law: Principles, Practice and Pluralism; David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 374-79; P.P. Craig, Administrative Law, 5th edn. (London: Thomson, 2003) at 398-405, 536-40; Capital Cities Communications Inc. v. CRTC, [1978] 2 S.C.R. 141 at 171; Vidal v. Canada (Minister of Employment and Immigration) (1991), 49 Admin. L.R. 118 (F.C.T.D.) at 131; Ainsley at 82-83.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-19", + "id": "fca-35611-30", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 43–45", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 58–60", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "In Ward, the Supreme Court explained at page 725 that in refugee law, there is a presumption of state protection: …nations should be presumed capable of protecting their citizens. Security of nationals is, after all, the essence of sovereignty. Absent a situation of complete breakdown of state apparatus, such as that recognized in Lebanon in Zalzali, it should be assumed that the state is capable of protecting a claimant.\n\nTo rebut the presumption, the Court stated that “clear and convincing confirmation of a state’s inability to protect must be provided”: Ward at page 724.\n\nIn Kadenko v. Canada (Solicitor General) (1996), 143 D.L.R. (4th) 532 at page 534 (F.C.A.), Décary J.A. elaborated on these principles and highlighted that the more democratic a country, the more the claimant must have done to seek out the protection of his or her home state: When the state in question is a democratic state, as in the case at bar, the claimant must do more than simply show that he or she went to see some members of the police force and that his or her efforts were unsuccessful. The burden of proof that rests on the claimant is, in a way, directly proportional to the level of democracy in the state in question: the more democratic the state's institutions, the more the claimant must have done to exhaust all the courses of action open to him or her. [Emphasis added.]", - "current_to": "2007-04-30", + "text": "Legal rules and discretion do not inhabit different universes, but are arrayed along a continuum. In our system of law and government, the exercise of even the broadest grant of statutory discretion which may adversely affect individuals is never absolute and beyond legal control: Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140. (per Rand J.). Conversely, few, if any, legal rules admit of no element of discretion in their interpretation and application: Baker at para. 54.\n\nAlthough not legally binding on a decision-maker in the sense that it may be be an error of law to misinterpret or misapply them, guidelines may validly influence a decision-maker’s conduct. Indeed, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, McIntyre J., writing for the Court, said (at 6): The fact that the Minister in his policy guidelines issued in the Notice to Importers employed the words: “If Canadian product is not offered at the market price, a permit will normally be issued; …” does not fetter the exercise of that discretion. [Emphasis added] The line between law and guideline was further blurred by Baker at para. 72, where, writing for a majority of the Court, L’Heureux-Dubé J. said that the fact that administrative action is contrary to a guideline “is of great help” in assessing whether it is unreasonable.\n\nThe use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Board, which sit in panels; in the case of the RPD, as already noted, a panel typically comprises a single member.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-20", + "id": "fca-35611-31", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 46", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 61–62", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The United States is a democratic country with a system of checks and balances among its three branches of government, including an independent judiciary and constitutional guarantees of due process. The appellants therefore bear a heavy burden in attempting to rebut the presumption that the United States is capable of protecting them and would be required to prove that they exhausted all the domestic avenues available to them without success before claiming refugee status in Canada. In Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 at page 176 (F.C.A.) (“Satiacum”) this Court was called upon to consider a claim of insufficient state protection in the United States and commented on the difficult task facing a claimant attempting to establish a failure of state protection in the United States: In the case of a nondemocratic State, contrary evidence might be readily forthcoming, but in relation to a democracy like the United States contrary evidence might have to go to the extent of substantially impeaching, for example, the jury selection process in the relevant part of the country, or the independence or fair-mindedness of the judiciary itself.", - "current_to": "2007-04-30", + "text": "It is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts, strive to ensure that similar cases receive the same treatment. This point was made eloquently by Gonthier J. when writing for the majority in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 at 327 (“Consolidated-Bathurst”): It is obvious that coherence in administrative decision-making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be “difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one”. [Citation omitted]\n\nNonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered: see, for example, Maple Lodge Farms at 7. This level of compliance may only be achieved through the exercise of a statutory power to make “hard” law, through, for example, regulations or statutory rules made in accordance with statutorily prescribed procedure.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-21", + "id": "fca-35611-32", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 47–48", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 63–64", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Although the United States, like other countries, has enacted provisions to punish deserters, it has also established a comprehensive scheme complete with abundant procedural safeguards for administering these provisions justly. In particular, Army Regulation 600-43 formally recognizes the validity of conscientious objection to military service by providing conscientious objectors with exemptions from military service or alternatives to combat. Soldiers attempting to avail themselves of these exemptions from combat service are provided with numerous procedural protections, including the right to a hearing and a right of appeal. They are also transferred to non-combat positions upon the making of an application, a provision from which Mr. Hinzman benefited when he was assigned to act as a guard at the entrance of the Fort Bragg base and to kitchen duties for the duration of his deployment in Afghanistan.\n\nFurthermore, while punishment for desertion can include imprisonment, the evidence indicates that the vast majority of Army deserters in the United States have not been prosecuted or court-martialled. Rather, approximately 94% of deserters have been dealt with administratively and merely receive a less-than-honourable discharge from the military (Exhibit M-5, Appeal Book at page 2420).", - "current_to": "2007-04-30", + "text": "In addition, the validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision. Ainsley is the best known example. That case concerned a challenge to the validity of a non-statutory policy statement issued by the Ontario Securities Commission setting out business practices which would satisfy the public interest in the marketing of penny stocks by certain securities dealers. The policy also stated that the Commission would not necessarily impose a sanction for non-compliance on a dealer under its “public interest” jurisdiction, but would consider the particular circumstances of each case.\n\nWriting for the Court in Ainsley, Doherty J.A. adopted the criteria formulated by the trial judge for determining if the policy statement was “a mere guideline” or was “mandatory”, namely, its language, the practical effect of non-compliance, and the expectations of the agency and its staff regarding its implementation. On the basis of these criteria, Doherty J.A. concluded that the policy statement was invalid. He emphasized, in particular, its minute detail, which “reads like a statute or regulation” (at 85), and the threat of sanctions for non-compliance. He found this threat to be implicit in the Commission’s pronouncement that the business practices it described complied with the public interest, and was evident in the attitude of enforcement staff ,who treated the policy as if it were a statute or regulation, breach of which was liable to trigger enforcement proceedings. (ii) Guideline 7 and the fettering of discretion (a) Is Guideline 7 delegated legislation?", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-22", + "id": "fca-35611-33", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 49–50", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 65–67", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The Board found that no evidence had been brought forward to establish that the appellants would not be afforded the full protection of the law if they were court-martialled in the United States. It concluded that if the appellants were court-martialled, they would be subjected to a sophisticated military justice system that respects the rights of the service person, guarantees appellate review and provides a limited access to the U.S. Supreme Court, as outlined in the UCMJ and the Manual for Courts-Martial of the United States.\n\nNeither Mr. Hinzman nor Mr. Hughey made an adequate attempt to avail himself of the protections afforded by the United States. Although Mr. Hinzman applied for conscientious objector status, he did not avail himself of all the recourses available to him. In particular, he failed to take advantage of his right to request an adjournment of the hearing respecting his conscientious objector application until his return to the United States, where he would be able to call appropriate witnesses, and to avail himself of his right of appeal from a negative decision at first instance. Like the Board, I find that it was not unreasonable to expect that Mr. Hinzman would have pursued further his request for conscientious objector status after learning that First Lieutenant Fitzgerald had found against him.", - "current_to": "2007-04-30", + "text": "An initial question is whether guidelines issued under IRPA, paragraph 159(1)(h) constitute delegated legislation, having the full force of law (“hard law”). If they do, Guideline 7 can no more be characterized as an unlawful fetter on members’ exercise of discretion with respect to the order of questioning than could a rule of procedure to the same effect issued under IRPA, paragraph 161(1))(a): Bell Canada v. Canadian Telephone Association Employees, 2003 SCC 36, [2003] 1 S.C.R. 884 at para 35 (“Bell Canada”).\n\nIn my view, despite the express statutory authority of the Chairperson to issue guidelines, they do not have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them. The word “guideline” itself normally suggests some operating principle or general norm, which does not necessarily determine the result of every dispute.\n\nHowever, the meaning of “guideline” in a statute may depend on context. For example, in Society of the Friends of Oldman River v. Canada (Minister of the Environment), [1992] 1 S.C.R. 3 at 33-37, La Forest J. upheld the validity of mandatory environmental assessment guidelines issued under section 6 of the Department of the Environment Act, R.S.C. 1985, c. E-10, which, he held, constituted delegated legislation and, as such, were legally binding.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-23", + "id": "fca-35611-34", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 51–53", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 68–70", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Unlike Mr. Hinzman, Mr. Hughey did not apply for conscientious objector status, nor did he take any other formal steps to avoid combat service contrary to his political views. Mr. Hughey’s attempts to avail himself of protections available in the United States appear to be limited to the discussions he had with his superior officers about the possibility of obtaining a discharge from the military, in which he was told that such a discharge was not available. He apparently did not seek any other advice, for example from a chaplain or a lawyer, about the options available to him.\n\nRather than attempt to take advantage of the protections potentially available to them in the United States, the appellants came to Canada and claimed refugee status. As the Supreme Court of Canada directed in Ward, however, refugee protection is not available where there has been an inadequate attempt to seek out the protections available in one’s home country.\n\nThe appellants challenge this reasoning, arguing that evidence of the state’s failure to protect is unnecessary where the state is the agent of persecution. They cite Zhuravlvev v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 3 at paragraph 19 (F.C.T.D.), for the proposition that when the state is persecuting the claimants, state protection is, by definition, absent. They note that in Ward, at issue were the actions of a non-state entity that was allegedly persecuting the claimant. According to the appellants, only in that situation is it appropriate for the Court to inquire into whether the state was able to protect the refugee claimant from his persecutor.", - "current_to": "2007-04-30", + "text": "In my view, Oldman River is distinguishable from the case before us. Section 6 of the Department of the Environment Act provided that guidelines were to be issued by an “order” (“arrêté”) of the Minister and approved by the Cabinet. In contrast, only rules issued by the Chairperson require Cabinet approval, guidelines (“directives”) do not. It would make little sense for IRPA to have conferred powers on the Chairperson to issue two types of legislative instrument, guidelines and rules, specified that rules must have Cabinet approval, and yet given both the same legal effect.\n\nGuidelines issued by the Human Rights Commission pursuant to subsection 27(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, have also been treated as capable of having the full force of law, even though they are made by an independent administrative agency and are not subject to Cabinet approval: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) at paras. 136-41; Bell Canada at paras. 35-38.\n\nIn Bell Canada, LeBel J. held (at para. 37), “on a functional and purposive approach to the nature” of the Commission’s guidelines, that they were “akin to regulations”, a conclusion supported by the use of the word “ordonnance” in the French text of subsection 27(2) of the Canadian Human Rights Act. In addition, subsection 27(3) expressly provides that guidelines issued under subsection 27(2) are binding on the Commission and on the person or panel assigned to inquire into a complaint of discrimination referred by the Commission under subsection 49(2) of the Act.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-24", + "id": "fca-35611-35", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 54", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 71–74", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "However, the concepts of persecution and state protection are interconnected such that the question of whether the refugee claimant has attempted to avail himself of the protective mechanisms provided by the state is relevant both where the alleged persecutor is an organ of the state and where the alleged persecutor is a non-state entity. The central feature of the refugee protection scheme is that the refugee claimant has a fear of persecution that is objectively well-founded (Ward at page 723). Where the claimant alleges that he is being persecuted by the state itself, the inquiry into the availability of state protection goes to the question of whether the claimant has an objective basis for his fear of persecution. If effective state protection for religious or political beliefs is available to the claimant, it can hardly be said that there is a serious possibility of persecution by the state sufficient to make his fear of persecution objectively well-founded. The presumption of state protection described in Ward, therefore, applies equally to cases where an individual claims to fear persecution by non-state entities and to cases where the state is alleged to be a persecutor. This is particularly so where the home state is a democratic country like the United States. We must respect the ability of the United States to protect the sincerely held beliefs of its citizens. Only where there is clear and convincing evidence that such protections are unavailable or ineffective such that state conduct amounts to persecution will this country be able to extend its refugee protections to the claimants.", - "current_to": "2007-04-30", + "text": "In my opinion, the scheme of IRPA is different, particularly the inclusion of a potentially overlapping rule-making power and the absence of a provision that guidelines are binding on adjudicators. In addition, the word “directives” in the French text of paragraph 159(1)(h) suggests a less legally authoritative instrument than “ordonnance”.\n\nI conclude, therefore, that, even though issued under an express statutory grant of power, guidelines issued under IRPA, paragraph 159(1)(h) cannot have the same legally binding effect on members as statutory rules may. (b) Is Guideline 7 an unlawful fetter on members’ discretion?\n\nSince guidelines issued by the Chairperson of the Board do not have the full force of law, the next question is whether, in its language and effect, Guideline 7 unduly fetters RPD members’ discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings. In my opinion, language is likely to be a more important factor than effect in determining whether Guideline 7 constitutes an unlawful fetter. It is inherently difficult to predict how decision-makers will apply a guideline, especially in an agency, like the Board, with a large membership sitting in panels.\n\nConsequently, since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in the absence of clear evidence to the contrary, such as that members have routinely refused to consider whether the facts of particular cases require an exception to be made.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-25", + "id": "fca-35611-36", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", - "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 55", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 75–77", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "A second contention made by the appellants is that Ward requires refugee claimants to seek out protections provided by their home countries only if that protection can be said to “reasonably have been forthcoming.” In their assessment, the protections provided to the appellants by the United States would not meet this threshold. They say that the American approach to conscientious objection does not protect those who only object to specific wars, rather than to all wars. The appellants argue that because they fall into the former category, it cannot be said that protection from the United States “might reasonably have been forthcoming” to them such that they should have attempted to avail themselves of such procedures. Moreover, the appellants submit that they would be unable to challenge the legality of the Iraq war in a U.S. court because of the U.S. political questions doctrine which, they claim, renders such issues non-justiciable. In light of this doctrine the appellants say that their only option would be to appeal to the Executive, an illusory recourse, in their view, because it was the Executive that chose to go to war in Iraq.", - "current_to": "2007-04-30", + "text": "I turn first to language. The Board’s Policy on the Use of Chairperson’s Guidelines, issued in 2003, states that guidelines are not legally binding on members: section 6. The introduction to Guideline 7 states: “The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly”\n\nThe text of the provisions of Guideline 7 of most immediate relevance to this appeal. Paragraph 19 states that it “will be” standard practice for the RPO to question the claimant first; this is less obligatory than “must” or some similarly mandatory language. The discretionary element of Guideline 7 is emphasized in paragraph 19, which provides that, while “the standard practice will be for the RPO to start questioning the claimant” (emphasis added), a member may vary the order “in exceptional circumstances”.\n\nClaimants who believe that exceptional circumstances exist in their case must apply to the RPD, before the start of the hearing, for a change in the order of questioning. The examples, and they are only examples, of exceptional circumstances given in paragraph 23 suggest that only the most unusual cases will warrant a variation. However, the parameters of “exceptional circumstances” will no doubt be made more precise, and likely expanded incrementally, on a case-by-case basis.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-26", + "id": "fca-35611-37", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 56", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 78–79", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "I cannot agree. A careful reading of Ward illustrates that when the Supreme Court of Canada adopted the test formulated by Professor Hathaway (that only in situations in which state protection “might reasonably have been forthcoming” will the claimant’s failure to approach the state for protection defeat his claim), the Court did not intend that refugee claimants would easily be able to avoid the requirement that they approach their home countries for protection before seeking international refugee protection. La Forest J. clarifies in the next sentence of his Reasons, at page 724, that the test is meant to be an objective one: …the claimant will not meet the definition of \"Convention refugee\" where it is objectively unreasonable for the claimant not to have sought the protection of his home authorities...", - "current_to": "2007-04-30", + "text": "I agree with Justice Blanchard’s conclusion (at para. 119) that the language of Guideline 7 is more than “a recommended but optional process”. However, as Maple Lodge Farms makes clear, the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts: see Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195.\n\nTo turn to the effect of Guideline 7, there was evidence that, when requested by counsel, members of the RPD had exercised their discretion and varied the standard order of questioning in cases which they regarded as exceptional. No such request was made on behalf of Mr Thamotharem. In any event, members must permit a claimant to be questioned first by her or his counsel when the duty of fairness so requires.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-27", + "id": "fca-35611-38", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 57", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 80–82", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Kadenko and Satiacum together teach that in the case of a developed democracy, the claimant is faced with the burden of proving that he exhausted all the possible protections available to him and will be exempted from his obligation to seek state protection only in the event of exceptional circumstances: Kadenko at page 534, Satiacum at page 176. Reading all these authorities together, a claimant coming from a democratic country will have a heavy burden when attempting to show that he should not have been required to exhaust all of the recourses available to him domestically before claiming refugee status. In view of the fact that the United States is a democracy that has adopted a comprehensive scheme to ensure those who object to military service are dealt with fairly, I conclude that the appellants have adduced insufficient support to satisfy this high threshold. Therefore, I find that it was objectively unreasonable for the appellants to have failed to take significant steps to attempt to obtain protection in the United States before claiming refugee status in Canada.", - "current_to": "2007-04-30", + "text": "In at least one case, however, a member wrongly regarded himself as having no discretion to vary the standard order of questioning prescribed in Guideline 7. On July 3, 2005, this decision was set aside on consent on an application for judicial review, on the ground that the member had fettered the exercise of his discretion, and the matter remitted for re-determination by a different member of the RPD: Baskaran v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-7189-04). Nonetheless, the fact that some members may erroneously believe that Guideline 7 removes their discretion to depart from the standard practice in exceptional circumstances does not warrant invalidating the Guideline. In such cases, the appropriate remedy for an unsuccessful claimant is to seek judicial review to have the RPD’s decision set aside.\n\nThere was also evidence from Professor Donald Galloway, an immigration and refugee law scholar, a consultant to the Board and a former Board member, that RPD members would feel constrained from departing from the standard order of questioning. However, he did not base his opinion on the actual conduct of members with respect to Guideline 7.\n\nIn short, those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities that members rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-28", + "id": "fca-35611-39", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 58", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 83", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "In the circumstances, it is difficult to conclude, without clear evidence of the appellants’ experiences to the contrary, that the appellants would have inadequate protection for their beliefs in the United States. Mr. Hinzman’s objections to combat transcend the war in Iraq and are grounded at least in part in his religious and spiritual beliefs. He may therefore very well have qualified as a conscientious objector had he pursued his application fully. Mr. Hughey may have more difficulty in seeking conscientious objector status because he objects only to the specific military action in Iraq on political grounds. Without evidence of his attempts to obtain such protection, however, it is impossible to know how he would have fared. In any event, conscientious objector discharges are not the only means by which soldiers can obtain early release from the military. Statistics adduced by the Crown indicate that approximately 94% of deserters from the U.S. Army have not faced prosecution and imprisonment, but have merely been dealt with administratively by being released from the military with a less-than-honourable discharge. Arguably, the chance of receiving an administrative discharge will be even higher for those who attempt to negotiate a discharge before deserting their units. Contrary to the appellants’ assertions, therefore, these statistics suggest that appeal to the Executive is not an illusory recourse.", - "current_to": "2007-04-30", + "text": "I recognize that members of the RPD must perform their adjudicative functions without improper influence from others, including the Chairperson and other members of the Board. However, the jurisprudence also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in their decisions, a particular challenge for large tribunals which, like the Board, sit in panels.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-29", + "id": "fca-35611-40", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 59", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "para 84", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "In oral argument, counsel for the appellants disputed the statistics relating to punishment for deserters on the basis that they were computed prior to the commencement of the most recent U.S. military action in Iraq. However, he could not point us to any contrary evidence. Moreover, there is reason to believe the statistics would not have changed materially. As Lord Hoffman noted in Sepet v. Secretary of State for the Home Department, [2003] UKHL 15 at paragraph 44 (H.L.), soldiers who conscientiously object to combat may do more harm than good because their unwillingness to participate voluntarily may make them ineffective in combat and because they are likely to be articulate individuals who will attempt to spread their beliefs among their colleagues. It therefore may be in the best interests of the military to accommodate those who object to combat by merely discharging them from service.", - "current_to": "2007-04-30", + "text": "Most notably, the Supreme Court of Canada in Consolidated-Bathurst upheld the Ontario Labour Relations Board’s practice of inviting members of panels who had heard but not yet decided cases to bring them to “full Board meetings”, where the legal or policy issues that they raised could be discussed in the absence of the parties. This practice was held not to impinge improperly on members’ adjudicative independence, or to breach the principle of procedural fairness that those who hear must also decide. Writing for the majority of the Court, Gonthier J. said (at 340): The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. … The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice. …", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-30", + "id": "fca-35611-41", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "para 60", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 85–86", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Moreover, while the Board said that the appellants would likely face one to five years imprisonment if returned to the United States, this can only be an opinion as to what U.S. courts would do. It is important to note that the Board’s Reasons did not consider all of the important evidence. In particular, the Reasons make no reference to the statistic that the vast majority of deserters are not prosecuted, let alone jailed for their conduct. As Justice Evans identified in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 at paragraph 17 (F.C.T.D.), a court will be reluctant to defer to a tribunal’s decision where the tribunal’s reasons consider in detail the evidence supporting its conclusions, but do not refer to important evidence pointing to a different conclusion: [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", - "current_to": "2007-04-30", + "text": "However, the arrangements made for discussions within an agency with members who have heard a case must not be so coercive as to raise a reasonable apprehension that members’ ability to decide cases free from improper constraints has been undermined: Tremblay v. Québec (Commission des affaires sociales), [1992] 1 S.C.R. 952.\n\nEvidence that the Immigration and Refugee Board “monitors” members’ deviations from the standard order of questioning does not, in my opinion, create the kind of coercive environment which would make Guideline 7 an improper fetter on members’ exercise of their decision-making powers. On a voluntary basis, members complete, infrequently and inconsistently, a hearing information sheet asking them, among other things, to explain when and why they had not followed “standard practice” on the order of questioning. There was no evidence that any member had been threatened with a sanction for non-compliance. Given the Board’s legitimate interest in promoting consistency, I do not find it at all sinister that the Board does not attempt to monitor the frequency of members’ compliance with the “standard practice”.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-31", + "id": "fca-35611-42", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 61–62", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 87–89", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Although the Board considered evidence suggesting that the appellants would be imprisoned for desertion if returned to the United States, it failed to make reference to the critical statistic that most deserters have not been imprisoned. This failure on the part of the Board suggests that its opinion regarding the punishment the appellants will potentially face upon return to the United States was made without regard to the material before it and therefore the Board’s opinion cannot be relied upon. 4) Conclusion\n\nIn conclusion, the appellants have failed to satisfy the fundamental requirement in refugee law that claimants seek protection from their home state before going abroad to obtain protection through the refugee system. Several protective mechanisms are potentially available to the appellants in the United States. Because the appellants have not adequately attempted to access these protections, however, it is impossible for a Canadian court or tribunal to assess the availability of protections in the United States. Accordingly, the appellants’ claims for refugee protection in Canada must fail. CLAIMS OF MR. HINZMAN’S WIFE AND SON", - "current_to": "2007-04-30", + "text": "Nor is it an infringement of members’ independence that they are expected to explain in their reasons why a case is exceptional and warrants a departure from the standard order of questioning. Such an expectation serves the interests of coherence and consistency in the Board’s decision-making in at least two ways. First, it helps to ensure that members do not arbitrarily ignore Guideline 7. Second, it is a way of developing criteria for determining if circumstances are “exceptional” for the purpose of paragraph 23 and of providing guidance to other members, and to the Bar, on the exercise of discretion to depart from the standrd order of questioning in future cases.\n\nIn my opinion, therefore, the evidence in the present case does not establish that a reasonable person would think that RPD members’ independence was unduly constrained by Guideline 7, particularly in view of: the terms of the Guideline; the evidence of members’ deviation from “standard practice”; and the need for the Board, the largest administrative agency in Canada, to attain an acceptable level of consistency at hearings, conducted mostly be single members.\n\nAdjudicative “independence” is not an all or nothing thing, but is a question of degree. The independence of judges, for example, is balanced against public accountability, through the Canadian Judicial Council, for misconduct. The independence of members of administrative agencies must be balanced against the institutional interest of the agency in the quality and consistency of the decisions, from which there are normally only limited rights of access to the courts, rendered by individual members in the agency’s name. (iii) Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35576-32", + "id": "fca-35611-43", "doc_type": "caselaw", - "act_code": "2007 FCA 171", - "act_short": "Hinzman", - "act_name": "Hinzman v. Canada (Citizenship and Immigration)", + "act_code": "2007 FCA 198", + "act_short": "Thamotharem", + "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", - "citation": "Hinzman v. Canada (Citizenship and Immigration), 2007 FCA 171", - "marginal_note": "paras 63–64", - "heading": "Refugee and humanitarian and compassionate claims by United States military deserters", + "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "marginal_note": "paras 90–91", + "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Mr. Hinzman’s wife, Nga Thi Nguyen, and son, Liam Liem Nguyen Hinzman, also claimed refugee status on the basis of membership in a particular social group, namely, Mr. Hinzman’s immediate family. Although they are named as appellants in the Hinzman appeal, no arguments were addressed to them in the Memorandum of Fact and Law filed in respect of that appeal or in oral argument. Moreover, the Order sought in the Hinzman appeal refers to the “Appellant,” in the singular, thereby apparently referring only to Mr. Hinzman. In these circumstances, I adopt the conclusions of the Board: The adult claimants adduced no evidence that Nga Thi Nguyen or Liam Liem Nguyen Hinzman would face a serious possibility of persecution or other serious harm as a result of being part of Mr. Hinzman’s family, even were he to receive a term of imprisonment for his desertion. They relied on the evidence of Mr. Hinzman, with whose claim theirs were joined. Since Mr. Hinzman has failed to establish his claim, their claims must also fail. DISPOSITION\n\nFor the foregoing reasons, I would refrain from answering the certified question and I would dismiss the appeals. \"J. Edgar Sexton\" J.A. \"I agree Robert Décary J.A.\" \"I agree John M. Evans J.A.\" FEDERAL COURT OF APPEAL", - "current_to": "2007-04-30", + "text": "On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Members’ “duties” include the conduct of hearings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”: IRPA, section 162. In my view, structuring members’ discretion over the order of questioning is within the subject-matter of the guidelines contemplated by section 159.\n\nIn any event, the Chairperson did not need an express grant of statutory authority to issue guidelines to members. Paragraph 159(1)(h) puts the question beyond dispute, establishes a duty to consult before a guideline is issued, and, perhaps, enhances their legitimacy.", + "current_to": "2007-05-25", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35576/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-1", + "id": "fca-35611-44", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 1–3", + "marginal_note": "para 92", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The Chairperson of the Immigration and Refugee Board (“the Board”) has broad statutory powers to issue both guidelines and rules. Rules have to be approved by the Governor in Council and laid before Parliament, but guidelines do not.\n\nThis appeal concerns the validity of Guideline 7 (Preparation and Conduct of a Hearing in the Refugee Protection Division), issued in 2003 by the Chairperson of the Board pursuant to the statutory power to “issue guidelines … to assist members in carrying out their duties”: Immigration and Refugee Protection Act, S.C. 2001, c. 27 (“IRPA”), paragraph 159(1)(h). The key paragraphs of Guideline 7 provide as follows: “In a claim for refugee protection, the standard practice will be for the R[efugee] P[rotection] O[fficer] to start questioning the claimant” (para. 19), although the member of the Refugee Protection Division (“RPD”) hearing the claim “may vary the order of questioning in exceptional circumstances” (para. 23).\n\nThe validity of Guideline 7 is challenged on two principal grounds. First, it deprives refugee claimants of the right to a fair hearing by denying them the opportunity to be questioned first by their own counsel. Second, even if Guideline 7 does not prescribe a hearing that is in breach of the duty of fairness, the Chairperson should have introduced the new standard order of questioning as a rule of procedure under IRPA, paragraph 161(1)(a), not as a guideline under IRPA, paragraph 159(1)(h). Guideline 7 is not valid as a guideline because paragraphs 19 and 23 unlawfully fetter the discretion of members of the RPD to determine the appropriate order of questioning when hearing refugee protection claims.", + "text": "An express statutory power to issue guidelines was first conferred on the Chairperson of the Board in 1993, as a result of an amendment to the former Immigration Act by Bill C-86. Appearing before the Committee of the House examining the Bill, Mr Gordon Fairweather, the then Chairperson of the Board welcomed this addition to the Board’s powers: I’m also pleased that the minister has responded to the need for new tools for managing the board itself. In the board’s desire to ensure consistency of decision-making, we welcome the legislative provision allowing for guidelines…. The provision will reinforce my authority, after appropriate consultations, and the courts have been very specific about saying, no guidelines until you have consulted widely with the caring agencies, the immigration bar, and other non-governmental organizations. But the courts have given the green light for such provision provided we go through those consultations. This provision will reinforce my authority, or the chair’s authority – that is a little less pompous – after appropriate consultations to direct members toward preferred positions and therefore foster consistency in decisions. [Emphasis added] (Canada, House of Commons, Legislative Committee on Bill C-86, Minutes of Proceedings and Evidence, 34th Parl., 3d sess., Issue 5 (July 30, 1992) at 80)", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-2", + "id": "fca-35611-45", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 4–6", + "marginal_note": "paras 93–95", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "This is an appeal by the Minister of Citizenship and Immigration from a decision by Justice Blanchard of the Federal Court granting an application for judicial review by Daniel Thamotharem to set aside a decision by the RPD dismissing his claim for refugee protection: Thamotharem v. Canada (Minister of Citizenship and Immigration), 2006 FC 16, [2006] 3 F.C.R. 168.\n\nJustice Blanchard held that Guideline 7 is an unlawful fetter on the exercise of discretion by individual RPD members to determine the order of questioning at a hearing, in the absence of a provision in either IRPA or the Refugee Protection Division Rules, SOR/2002-228, dealing with this aspect of refugee protection hearings. He remitted Mr Thamotharem’s refugee claim to be determined by a different member of the RPD on the basis that Guideline 7 is an invalid fetter on the exercise of decision-makers’ discretion.\n\nHowever, Justice Blanchard rejected Mr Thamotharem’s argument that Guideline 7 is invalid because it deprives refugee claimants of the right to a fair hearing, and distorts the “judicial” role of the member hearing the claim. Mr Thamotharem has cross-appealed this finding.", + "text": "In my view, the present appeal raises an important question about the relationship between the Chairperson’s powers to issue guidelines and rules. In particular, are these grants of legal authority cumulative so that, for the most part, the scope of each is to be determined independently of the other? Or, is the Chairperson’s power to issue guidelines implicitly limited by the power to make rules of procedure? If it is, then a change to the procedure of any Division of the Board may only be effected through a rule of procedure issued under paragraph 161(1)(a) which has been approved by Cabinet and subjected to Parliamentary scrutiny in accordance with subsection 161(2).\n\nThe argument in the present case is that Guideline 7 is a rule of procedure and, since it reforms the existing procedure of the RPD, should have been issued under paragraph 161(1)(a), received Cabinet approval and been laid before Parliament. The power of the Chairperson to issue guidelines may not be used to avoid the political accountability mechanisms applicable to statutory rules issued under subsection 161(1).\n\nFor this purpose, the fact that Guideline 7 permits RPD members to exercise their discretion in “exceptional circumstances” to deviate from “standard practice” in the order of questioning does not prevent it from being a rule of procedure: rules of procedure commonly confer discretion to be exercised in the light of particular facts.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-3", + "id": "fca-35611-46", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 7–9", + "marginal_note": "paras 96–98", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "The Judge certified the following questions for appeal pursuant to paragraph 74(d) of IRPA. 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? 3. Does a finding that Guideline 7 fetters a Refugee Protection Division Member’s discretion necessarily mean that the application for judicial review must be granted, without regard to whether or not the applicant was otherwise afforded procedural fairness in the particular case or whether there was an alternate basis for rejecting the claim?\n\nImmediately after hearing the Minister’s appeal in Thamotharem, we heard appeals by unsuccessful refugee claimants challenging the validity of Guideline 7 and, in some of the cases, impugning on other grounds the dismissal of their claim. In the Federal Court, 19 applications for judicial review concerning Guideline 7 were consolidated. Justice Mosley’s decision on the Guideline 7 issue is reported as Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2007] 1 F.C.R. 107. The appeals from these decisions were also consolidated, Benitez being designated the lead case.\n\nIn Benitez, Justice Mosley agreed with the conclusions of Justice Blanchard on all issues, except one: he held that Guideline 7 was not an unlawful fetter on the discretion of Board members because its text permitted them to allow the claimant’s counsel to question first, as, in fact, some had.", + "text": "An analogous line of reasoning is found in the Ontario Court of Appeal’s decision in Ainsley, where it was said that the Ontario Securities Commission’s policy statement prescribing business practices of penny stock dealers which would satisfy the statutory public interest standard was invalid, because it was in substance and effect “a mandatory provision having the effect of law” (at 84). In my opinion, however, Ainsley should be applied to the present case with some caution.\n\nFirst, when Ainsley was decided, the Commission had no express statutory power to issue guidelines and no statutorily recognized role in the regulation-making process. In contrast, the Chairperson of the Board has a broad statutory power to issue guidelines and, subject to Cabinet approval, to make rules respecting a broad range of topics, including procedure.\n\nAdmittedly, the Board’s rules of procedure (as well, of course, as IRPA itself and regulations made under it by the Governor in Council) have a higher legal status than guidelines, in the sense that, if a guideline and a rule conflict, the rule prevails.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-4", + "id": "fca-35611-47", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 10–12", + "marginal_note": "paras 99–101", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "For substantially the reasons that they gave, I agree with both Justices that Guideline 7 is not, on its face, invalid on the ground of procedural unfairness, although, as the Minister and the Board conceded, fairness may require that, in certain circumstances, particular claimants should be questioned first by their own counsel. I also agree that Guideline 7 is not incompatible with the impartiality required of a member when conducting a hearing which is inquisitorial in form.\n\nHowever, in my opinion, Guideline 7 is not an unlawful fetter on the exercise of members’ discretion on the conduct of refugee protection hearings. The Guideline expressly directs members to consider the facts of the particular case before them to determine whether there are exceptional circumstances warranting a deviation from the standard order of questioning. The evidence does not establish that members disregard this aspect of Guideline 7 and slavishly adhere to the standard order of questioning, regardless of the facts of the case before them. Accordingly, I agree with Justice Mosley on this issue, and must respectfully disagree with Justice Blanchard.\n\nNor does it follow from the fact that Guideline 7 could have been issued as a statutory rule of procedure that it is invalid because it was not approved by the Governor in Council. In my opinion, the Chairperson’s rule-making power does not invalidate Guideline 7 by impliedly excluding from the broad statutory power to issue guidelines “to assist members in carrying out their duties” changes to the procedure of any of the Board’s Divisions.", + "text": "Second, the policy statement considered in Ainsley was directed at businesses regulated by the Commission and was designed to modify their practices by linking compliance with the policy to the Commission’s prosecutorial power to institute enforcement proceedings, which could result in the loss of a licence by businesses not operating in “the public interest”. Guideline 7, on the other hand, is directed at the practice of RPD members in the conduct of their proceedings. It does not impose de facto duties on members of the public or deprive them of an existing right. Guideline 7 lacks the kind of coercive threat, against either claimants or members, in the event of non-compliance, which was identified as important to the decision in Ainsley.\n\nThe Commission’s promulgation of detailed industry standards, other than through enforcement proceedings against individuals, when it lacked any legislative power, raised rule of law concerns. In my opinion, the same cannot plausibly be said of the Chairperson’s decision to introduce a standard order of questioning through the statutory power to issue guidelines, rather than his power to issue rules.\n\nThird, while the Board can only issue formal statutory rules of procedure with Cabinet approval, tribunals often do not require Cabinet approval of their rules. In Ontario, for example, the procedural rules of tribunals to which the province’s general code of administrative procedure applies are not subject to Cabinet approval: Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, subsection 25.1(1). Hence, it cannot be said to be a principle of our system of law and government that administrative tribunals’ rules of procedure require political approval.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-5", + "id": "fca-35611-48", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 13–16", + "marginal_note": "paras 102–105", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Accordingly, I would allow the Minister’s appeal, and dismiss Mr Thamotharem’s cross- appeal and his application for judicial review. Although separate reasons are given in Benitez (2007 FCA 199) dealing with issues not raised in Mr Thamotharem’s appeal, a copy of the reasons in the present appeal will also be inserted in Court File No. A-164-06 (Benitez) and the files of the appeals consolidated with it. B. FACTUAL BACKGROUND (i) Mr Thamotharem’s refugee claim\n\nMr Thamotharem is Tamil and a citizen of Sri Lanka. He entered Canada in September 2002 on a student visa. In January 2004, he made a claim for refugee protection in Canada, since he feared that, if forced to return to Sri Lanka, he would be persecuted by the Liberation Tigers of Tamil Eelam.\n\nIn written submissions to the RPD before his hearing, Mr Thamotharem objected to the application of Guideline 7, on the ground that it deprives refugee claimants of their right to a fair hearing. He did not argue that, on the facts of his case, he would be denied a fair hearing if he were questioned first by the Refugee Protection Officer (“RPO”) and/or the member conducting the hearing. There was no evidence that Mr Thamotharem suffered from post-trauma stress disorder, or was otherwise particularly vulnerable.\n\nAt the hearing of the claim before the RPD, the RPO questioned Mr Thamotharem first. The RPD held that the duty of fairness does not require that refugee claimants always have the right to be questioned first by their counsel and that the application of Guideline 7 does not breach Mr Thamotharem’s right to procedural fairness.", + "text": "Fourth, while Guideline 7 changed the way in which the Board conducts most of its hearings, it represents, in my view, more of a filling in of detail in the procedural model established by IRPA and the Refugee Protection Division Rules, than “fundamental procedural change” or “sweeping procedural reform”, to use the characterization in the memorandum of the intervener, the Canadian Council for Refugees.\n\nFor example, rule 16(e) includes the questioning of witnesses in the RPO’s duties, but is silent on the precise point in the hearing when the questioning is to occur. Similarly, while rule 25 deals with the intervention of the Minister, it does not specify when the Minister will lead evidence and make submissions. Rule 38 permits a party to call witnesses, but does not say when they will testify.\n\nFifth, the differences in the legal characteristics of statutory rules of procedure and Guideline 7 should not be overstated. Rules of procedure commonly permit those to whom they are directed to depart from them in the interests of justice and efficiency. Thus, rule 69 of the Refugee Protection Division Rules permits a member to change a requirement of a rule or excuse a person from it, and to extend or shorten a time period. Failure to comply with a requirement of the Rules does not make a proceeding invalid: rule 70.\n\nFinally, as I have already indicated, the Chairperson’s power to issue guidelines extends, on its face, to matters of procedure. Its exercise is not made expressly subject to paragraph 161(1)(a), although a guideline issued under paragraph 159(1)(h) which is inconsistent with a formal rule of procedure issued under paragraph 161(1)(a) will be invalid.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-6", + "id": "fca-35611-49", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 17–18", + "marginal_note": "paras 106–109", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "In a decision dated August 20, 2004, the RPD dismissed Mr Thamotharem’s refugee claim and found him not to be a person in need of protection. It based its decision on documentary evidence of improved country conditions for Tamils in Sri Lanka, and on the absence of reliable evidence that Mr Thamotharem would be persecuted as a perceived member of a political group or would, for the first time, become the target of extortion.\n\nIn his application for judicial review, Mr Thamotharem challenged this decision on the ground that Guideline 7 was invalid, and that the RPD had made a reviewable error in its determination of the merits of his claim. As already noted, Mr Thamotharem’s application for judicial review was granted, the RPD’s decision set aside and the matter remitted to another member for re-determination on the basis that Guideline 7 is an invalid fetter on the RPD’s discretion in the conduct of the hearing. In responding in this Court to the Minister’s appeal, Mr. Thamotharem did not argue that, even if Guideline 7 is valid, Justice Blanchard was correct to remit the matter to the RPD because it committed a reviewable error in determining the merits of the claim. (ii) Guideline 7", + "text": "On the basis of the foregoing analysis, I conclude that, on procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) will not normally invalidate it, provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion, which, for reasons already given, I have concluded that it does not.\n\nIn my opinion, the Chairperson may choose through which legislative instrument to introduce a change to the procedures of any of the three Divisions of the Board. Parliament should not be taken to have implicitly imposed a rigidity on the administrative scheme by preventing the Chairperson from issuing a guideline to introduce procedural change or clarification.\n\nI do not say that the Chairperson’s discretion to choose between a guideline or a rule is beyond judicial review. However, it was not unreasonable for the Chairperson to choose to implement the standard order of questioning through the more flexible legislative instrument, the guideline, rather than through a formal rule of procedure.\n\nFirst, Guideline 7 is not a comprehensive code of procedure nor, when considered in the context of the refugee determination process as a whole, is it inconsistent with the existing procedural model for RPD hearings. Second, the procedural innovation of standard order questioning may well require modification in the light of cumulated experience. Fine-tuning and adjustments of this kind are more readily accomplished through a guideline than a formal rule. Parliament should not be taken to have intended the Chairperson to obtain Cabinet approval for such changes. E. CONCLUSIONS", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-7", + "id": "fca-35611-50", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 19–20", + "marginal_note": "paras 110–113", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Before the Chairperson issued Guideline 7, the order of questioning was within the discretion of individual members; neither IRPA, nor the Refugee Protection Division Rules, addressed it. Refugee protection claims are normally determined by a single member of the RPD. The evidence indicated that, before the issue of Guideline 7, practice on the order of questioning was not uniform across Canada. Members sitting in Toronto and, possibly, in Vancouver and Calgary, permitted claimants to be “examined in chief” by their counsel before being questioned by the RPO and/or the member. In Montreal and Ottawa, on the other hand, the practice seems to have been that the member or the RPO questioned the claimant first, although a request by counsel for a claimant to question first seems generally to have been granted.\n\nIt is not surprising that the Board did not regard it as satisfactory that the order of questioning was left to be decided by individual members on an ad hoc basis, with variations among regions, and among members within a region. Claimants are entitled to expect essentially the same procedure to be followed at an RPD hearing, regardless of where or by whom the hearing is conducted.", + "text": "For these reasons, I would allow the Minister’s appeal, dismiss Mr Thamotharem’s cross-appeal, set aside the order of the Federal Court, and dismiss the application for judicial review. I would answer the first two certified questions as follows: 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? No 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? No.\n\nSince I would dismiss the application for judicial review, the third question does not arise and need not be answered. “John M. Evans” J.A. “I agree. Robert Décary J.A.” SHARLOW J.A. (Concurring)\n\nI agree with my colleague Justice Evans that this appeal should be allowed, but I reach that conclusion by a different route.\n\nAs Justice Evans explains, IRPA gives the Chairperson two separate powers. One is the power in paragraph 159(1)(h) to issue guidelines in writing to assist Members in carrying out their duties. The other is the power in paragraph 161(1)(a) to make rules respecting the activities, practice and procedure of the Board, subject to the approval of the Governor in Council. Both powers are to be exercised in consultation with the Deputy Chairpersons and the Director General of the Immigration Division. In my view, these two powers are different in substantive and functional terms, and are not interchangeable at the will of the Chairperson.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-8", + "id": "fca-35611-51", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 21", + "marginal_note": "paras 114–116", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "There was also a view that refugee protection hearings would be more expeditious if claimants were generally questioned first by the RPO or the member, thus dispensing with the often lengthy and unfocussed examination-in-chief of claimants by their counsel. The backlog of refugee determinations has been a major problem for the Board. For example, from 1997-98 to 2001-02 the number of claims referred for determination each year increased steadily from more than 23,000 to over 45,000, while, in the same period, the backlog of claims referred but not decided grew from more than 27,000 to nearly 49,000: Canada, Immigration and Refugee Board, Performance Report, for the period ending March 31, 2004.", + "text": "The subject of Guideline 7 is the order of proceeding in refugee hearings. That is a matter respecting the activities, practice and procedure of the Board, analogous to the subject matter of the procedural rules of courts. In my view, the imposition of a standard practice for refugee determination hearings should have been the subject of a rule of procedure, not a guideline.\n\nI make no comment on the wisdom of the Chairperson’s determination that the standard practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the Member to start questioning the refugee claimant. That is a determination that the Chairperson was entitled to make. However, to put that determination into practice while respecting the limits of the statutory authority of the Chairperson, the Chairperson should have drafted a rule to that effect, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, and sought the approval of the Governor in Council.\n\nJustice Evans notes that some commentators have suggested that the implementation of a rule under paragraph 161(1)(a) is more onerous in administrative and bureaucratic terms than the implementation of a guideline under paragraph 159(1)(h). That appears to me to be an unduly negative characterization of the legislated requirement for the approval of the Governor in Council, Parliament’s chosen mechanism of oversight for the Chairperson’s rule making power under paragraph 161(1)(a). It is also belied by the facts of this case, which indicates that the development of Guideline 7 took approximately four years. I doubt that a rule with the same content would necessarily have taken longer than that.", "current_to": "2007-05-25", "last_amended": "", "history": "", "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" }, { - "id": "fca-35611-9", + "id": "fca-35611-52", "doc_type": "caselaw", "act_code": "2007 FCA 198", "act_short": "Thamotharem", "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", "section": "", "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 22", + "marginal_note": "paras 117–120", "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", "part": "Federal Court of Appeal", "division": "", - "text": "Studies were undertaken to find ways of tackling this problem. For example, in a relatively early report, Rebuilding Trust: Report of the Review of Fundamental Justice in Information Gathering and Dissemination at the Immigration and Refugee Board of Canada (Ottawa: Immigration and Refugee Board, 1993), refugee law scholar, Professor James C. Hathaway, made many recommendations designed to make the Board’s determination of refugee claims more effective, expeditious, and efficient. The following passage from the Report (at 74) is particularly relevant to the present appeal. The present practice of an introductory “examination in chief” by counsel should be dispensed with, the sworn testimony in the Application for Refugee Status being presumed to be true unless explicitly put in issue. Panel members should initially set out clearly the substantive matters into which they wish to inquire, and explain any concerns they may have about the sufficiency of documentary evidence presented. Members should assume primary responsibility to formulate the necessary questions, although they should feel free to invite counsel to adduce testimony in regard to matters of concern to them. Once the panel has concluded its questioning, it should allow the Minister’s representative, if present, an opportunity to question or call evidence, ensuring that the tenor of the Ministerial intervention is not allowed to detract from the non-adversarial nature of the hearing. Following a brief recess, the panel should outline clearly on the record which matters it views as still in issue, generally using the Conference Report as its guide. Any matters not stated by the panel to be topics of continuing concern should be deemed to be no longer in issue.", - "current_to": "2007-05-25", + "text": "The more important question in this case is whether the Chairperson’s erroneous decision to implement a guideline rather than a rule to establish a standard practice for refugee hearings provides a sufficient basis in itself for setting aside a negative refugee determination made by a Member who requires a refugee claimant to submit to questions from the RPO or the Member before presenting his or her own case.\n\nI agree with Justice Evans that the standard procedure outlined in Guideline 7 is not in itself procedurally unfair and that Guideline 7, properly understood, does not unlawfully fetter the discretion of Members. In my view, despite Guideline 7, each Member continues to have the unfettered discretion to adopt any order of procedure required by the exigencies of each claim to which the Member is assigned.\n\nIt may be the case that a particular Member may conclude incorrectly that Guideline 7 deprives the Member of the discretion to permit a refugee claimant to present his or her case before submitting to questioning from the RPO or the Member. If so, it is arguable that a negative refugee determination by that Member is subject to being set aside if (1) the Member refused the request of a refugee claimant to proceed first and required the refugee claimant to submit to questioning by the RPO or the Member before presenting his or her case, and (2) it is established that, but for Guideline 7, the Member would have permitted the refugee claimant to present his or her case first. In the case of Mr. Thamotharem, those conditions have not been met.\n\nFor these reasons, I would dispose of this appeal as proposed by Justice Evans, and I would answer the certified questions as he proposes. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL", + "current_to": "2007-05-25", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + }, + { + "id": "fca-37227-1", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 1–6", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The applicant is a citizen of Grenada. In 1999, she entered Canada as a visitor. She never left. She has stayed in Canada, contrary to Canada’s immigration laws.\n\nFor her first seven years in Canada, the appellant worked and earned enough to sustain herself. However, in 2006, her health began to deteriorate. She could no longer work.\n\nSince 2006, the appellant has received some medical care without having to pay for it, but much more medical care is required. Her medical condition has become most serious.\n\nIn September 2008, still in Canada contrary to Canada’s immigration laws, the appellant took steps to try to regularize her status in Canada. She applied to Citizenship and Immigration Canada for permanent residence status. A few months later, she applied to Citizenship and Immigration Canada for a temporary residence permit so she could become eligible for health coverage under the Ontario Health Insurance Program. In both applications, she asked for a waiver of the fees. The waivers were refused, the fees remained unpaid, and so the applications were never considered.\n\nIn May 2009, the appellant applied to Citizenship and Immigration Canada for medical coverage under its Interim Federal Health Program. As we shall see, this Program is actually embodied in one of Canada’s immigration laws, Order in Council OIC 1957-11/848. Under this Order in Council, Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada.\n\nA Director with Citizenship and Immigration Canada found that the appellant was ineligible to receive medical coverage and rejected her application.", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-2", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 7–11", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant brought an application for judicial review to the Federal Court, submitting that she was eligible for medical coverage. In the alternative, she submitted that her exclusion from medical coverage infringed her rights under sections 7 and 15 of the Charter. She requested the Federal Court to “read” the Order in Council as including her – in effect, to make this law compliant with sections 7 and 15 of the Charter by extending its terms to provide her with medical coverage.\n\nIf the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.\n\nBut the Federal Court (per Justice Zinn) did not accept the appellant’s request to extend the scope of the Order in Council. It rejected her submissions and dismissed the application for judicial review: 2010 FC 810 (main decision) and 2010 FC 926 (decision on motion for reconsideration).\n\nThe appellant appeals to this Court, making submissions substantially similar to those that were made in the Federal Court.\n\nI also reject the appellant’s submissions and would dismiss the appeal. A. The Order in Council", + "current_to": "2011-06-27", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + }, + { + "id": "fca-37227-3", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 12–13", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "part": "Federal Court of Appeal", + "division": "", + "text": "Order in Council OIC 1957-11/848, passed on June 20, 1957, provides as follows: The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer, in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare. B. The Director’s decision\n\nThe decision-maker on the appellant’s application to Citizenship and Immigration Canada for medical coverage was the Director, Program Management and Control, Health Management Branch.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-10", + "id": "fca-37227-4", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 22–25", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 14–16", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Counsel would then be invited to elicit testimony, call witnesses, and make submissions as adjudged appropriate, keeping in mind that all additional evidence must be directed to a matter which remains in issue. [footnotes omitted]\n\nStarting in 1999, the Board worked to develop what became Guideline 7, which was finally issued in October 31, 2003, as part of an action plan to reduce the backlog on the refugee side by increasing the efficiency of its decision-making process. In addition to the order of questioning provisions in dispute in this case, Guideline 7 also deals with the early identification of issues and disclosure of documents, procedures when a claimant is late or fails to appear, informal pre-hearing conferences, and the administration of oaths and affirmations.\n\nIn addition to the consultations with the Deputy Chairperson and the Director General of the Immigration Division mandated by paragraph 159(1)(h) before the Chairperson issues a guideline, the Board held consultations on the proposed Guideline with members of the Bar and other “stakeholders”. Some, however, including the Canadian Council for Refugees, an intervener in this appeal, regarded the consultations as less than meaningful, while others characterized Guideline 7 as an overly “top-down” initiative by senior management of the Board. On the basis of the material before us, I am unable to comment on either of these observations.\n\nFrom December 1, 2003, the implementation of Guideline 7 was gradually phased in, becoming fully operational across the country by June 1, 2004. Like other guidelines issued by the Chairperson, Guideline 7 was published. C. LEGISLATIVE FRAMEWORK (i) IRPA", - "current_to": "2007-05-25", + "text": "As mentioned above, the Director denied the appellant medical coverage. The Director’s decision is as follows: Health care services are provided by the Provinces and Territories. As such, access or denial to health care rests with those Provincial and Territorial authorities, in this case the Province of Ontario. The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients: ● Refugee claimants; ● Resettled Refugees; ● Persons detained under the Immigration and Refugee Protection Act (IRPA); and, ● Victims of Trafficking in Persons (VTIPs). As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved. Please be advised that your client has no active immigration application with Citizenship and Immigration Canada (CIC). C. The standard of review applicable to the Director’s decision\n\nAs mentioned above, the appellant applied to the Federal Court for judicial review of the Director’s decision.\n\nThe Federal Court did not explicitly select a standard of review for its consideration of the Director’s decision. However, it did find, in effect on a correctness standard, that the appellant did not qualify for medical coverage.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-11", + "id": "fca-37227-5", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 26", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 17–18", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "IRPA confers on the Chairperson of the Board broad powers over the management of each Division of the Board, including a power to issue guidelines. 159. (1) The Chairperson is, by virtue of holding that office, a member of each Division of the Board and is the chief executive officer of the Board. In that capacity, the Chairperson (a) has supervision over and direction of the work and staff of the Board; … (g) takes any action that may be necessary to ensure that the members of the Board carry out their duties efficiently and without undue delay; (h) may issue guidelines in writing to members of the Board and identify decisions of the Board as jurisprudential guides, after consulting with the Deputy Chairpersons and the Director General of the Immigration Division, to assist members in carrying out their duties; … 159. (1) Le président est le premier dirigeant de la Commission ainsi que membre d’office des quatre sections; à ce titre : a) il assure la direction et contrôle la gestion des activités et du personnel de la Commission; […] g) il prend les mesures nécessaires pour que les commissaires remplissent leurs fonctions avec diligence et efficacité; h) après consultation des vice-présidents et du directeur général de la Section de l’immigration et en vue d’aider les commissaires dans l’exécution de leurs fonctions, il donne des directives écrites aux commissaires et précise les décisions de la Commission qui serviront de guide jurisprudentiel; […]", - "current_to": "2007-05-25", + "text": "The first step in determining the standard of review is to appreciate the nature of the decision in issue. As mentioned at the outset, the Interim Federal Health Program mentioned by the Director is embodied in an Order in Council (P.C. 157-11/848) and the decision-maker is a delegate of the Minister of Citizenship and Immigration Canada. In effect, we are reviewing the legal interpretation and application of an Order in Council by a delegate of the Minister.\n\nThe Supreme Court has told us that the standard of review will “usually” or “normally” be reasonableness where “a tribunal” is interpreting its “own statute” or “statutes closely connected to its function, with which it will have particular familiarity”: 2008 SCC 9 at paragraph 54, [2008] 1 S.C.R. 190; Celgene Corp. v. Canada (A.G.), 2011 SCC 1 at paragraph 34, 327 D.L.R. (4th) 513; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paragraph 26, 328 D.L.R. (4th) 1.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-12", + "id": "fca-37227-6", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 27", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "IRPA also empowers the Chairperson of the Board to make rules for each of the three Divisions of Board. The rules, however, must be approved by the Governor in Council, and laid before Parliament. 161. (1) Subject to the approval of the Governor in Council, and in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, the Chairperson may make rules respecting (a) the activities, practice and procedure of each of the Divisions of the Board, including the periods for appeal, the priority to be given to proceedings, the notice that is required and the period in which notice must be given; (b) the conduct of persons in proceedings before the Board, as well as the consequences of, and sanctions for, the breach of those rules; (c) the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board; and (d) any other matter considered by the Chairperson to require rules. (2) The Minister shall cause a copy of any rule made under subsection (1) to be laid before each House of Parliament on any of the first 15 days on which that House is sitting after the approval of the rule by the Governor in Council. 161.", - "current_to": "2007-05-25", + "text": "I am inclined to find that the Director is subject to this “normal” or “usual” position of deference to his decision-making. But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case: (a) We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director. (b) In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 and cases cited at paragraph 27 of Patel.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-13", + "id": "fca-37227-7", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 27–28", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "(1) Sous réserve de l’agrément du gouverneur en conseil et en consultation avec les vice-présidents et le directeur général de la Section de l’immigration, le président peut prendre des règles visant : a) les travaux, la procédure et la pratique des sections, et notamment les délais pour interjeter appel de leurs décisions, l’ordre de priorité pour l’étude des affaires et les préavis à donner, ainsi que les délais afférents; b) la conduite des personnes dans les affaires devant la Commission, ainsi que les conséquences et sanctions applicables aux manquements aux règles de conduite; c) la teneur, la forme, le délai de présentation et les modalités d’examen des renseignements à fournir dans le cadre d’une affaire dont la Commission est saisie; d) toute autre mesure nécessitant, selon lui, la prise de règles. (2) Le ministre fait déposer le texte des règles devant chacune des chambres du Parlement dans les quinze premiers jours de séance de celle-ci suivant leur agrément par le gouverneur en conseil.\n\nIRPA emphasises the importance of informality, promptness and fairness in the Board’s proceedings. 162. (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. 162. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité.", - "current_to": "2007-05-25", + "text": "This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate. (c) The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case. (d) The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-14", + "id": "fca-37227-8", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 29", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 19", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In keeping with the inquisitorial nature of the RPD’s process, IRPA confers broad discretion on members in their conduct of a hearing. 165. The Refugee Protection Division and the Immigration Division and each member of those Divisions have the powers and authority of a commissioner appointed under Part I of the Inquiries Act and may do any other thing they consider necessary to provide a full and proper hearing. 165. La Section de la protection des réfugiés et la Section de l’immigration et chacun de ses commissaires sont investis des pouvoirs d’un commissaire nommé aux termes de la partie I de la Loi sur les enquêtes et peuvent prendre les mesures que ceux-ci jugent utiles à la procédure.", - "current_to": "2007-05-25", + "text": "(e) The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know. (f) In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could [have] be[en] offered” [emphasis added]. (g) I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-15", + "id": "fca-37227-9", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 30", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 19–25", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Part I of the Inquiries Act, R.S.C. 1985, c. I-11, empowers commissioners of inquiry as follows: 4. The commissioners have the power of summoning before them any witnesses, and of requiring them to (a) give evidence, orally or in writing, and on oath or, if they are persons entitled to affirm in civil matters on solemn affirmation; and (b) produce such documents and things as the commissioners deem requisite to the full investigation of the matters into which they are appointed to examine. 5. The commissioners have the same power to enforce the attendance of witnesses and to compel them to give evidence as is vested in any court of record in civil cases. 4. Les commissaires ont le pouvoir d’assigner devant eux des témoins et de leur enjoindre de : a) déposer oralement ou par écrit sous la foi du serment, ou d’une affirmation solennelle si ceux-ci en ont le droit en matière civile; b) produire les documents et autres pièces qu’ils jugent nécessaires en vue de procéder d’une manière approfondie à l’enquête dont ils sont chargés. 5. Les commissaires ont, pour contraindre les témoins à comparaître et à déposer, les pouvoirs d’une cour d’archives en matière civile.", - "current_to": "2007-05-25", + "text": "Public Mobile Inc., 2011 FCA 194 at paragraph 35.\n\nFortunately, on the facts of this case, I need not decide whether the standard of review is correctness or the deferential standard of reasonableness. Regardless of the standard of review, the Director’s decision passes muster: as the Director found, the appellant was not entitled to receive medical coverage in this case. D. The Federal Court’s conclusions concerning the decision of the Director\n\nThe Federal Court found that the Director fettered his discretion by following a departmental guideline instead of interpreting the actual wording of the Order in Council. In its view, the Director was entitled to read and consider the departmental guideline but should have interpreted the actual wording of the Order in Council, the law that governed his discretion.\n\nHowever, the Federal Court held that this was immaterial: if the Director had regard to the Order in Council, he would have had to rule that the appellant was not entitled to receive coverage. Therefore, the Director’s decision could stand.\n\nFor the purposes of this appeal, the Federal Court’s bottom-line conclusion was that the appellant was ineligible under the Order in Council to receive medical coverage. E. Assessment of the Federal Court’s decision that the appellant was ineligible to receive medical coverage under the Order in Council (1) Introduction and overview\n\nIn my view, the Federal Court’s bottom line conclusion is correct: the appellant was ineligible to receive medical coverage under the Order in Council.\n\nIn reaching its conclusion, the Federal Court relied upon the plain meaning of the words in the Order in Council. It examined the history behind the Order in Council in order to see if there was some special significance behind some of the wording used in it.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-16", + "id": "fca-37227-10", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 31", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 26", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "The following provisions of IRPA respecting the decision-making process of the RPD are also relevant. 170. The Refugee Protection Division, in any proceeding before it, (a) may inquire into any matter that it considers relevant to establishing whether a claim is well-founded; … (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; … 170. Dans toute affaire dont elle est saisie, la Section de la protection des réfugiés : a) procède à tous les actes qu’elle juge utiles à la manifestation du bien-fondé de la demande; […] g) n’est pas liée par les règles légales ou techniques de présentation de la preuve; h) peut recevoir les éléments qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; […] (ii) Guideline 7", - "current_to": "2007-05-25", + "text": "The Federal Court also placed particular emphasis upon a rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see the Federal Court’s reasons at paragraph 44. I agree with the Federal Court’s view that the Minister’s rationale was an important clue as to the intended scope of the Order in Council. It was right to place particular emphasis on it.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-17", + "id": "fca-37227-11", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 32", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 27", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Paragraphs 19 and 23 of Guideline 7, issued by the Chairperson under IRPA, paragraph 159(1)(h), are of immediate relevance in this appeal, while paragraphs 20-22 provide context. 19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case. 20. In a claim for refugee protection where the Minister intervenes on an issue other than exclusion, for example, on a credibility issue, the RPO starts the questioning. If there is no RPO at the hearing, the member will start the questioning, followed by the Minister's counsel and then counsel for the claimant. 21. In proceedings where the Minister intervenes on the issue of exclusion, Minister's counsel will start the questioning, followed by the RPO, the member, and counsel for the claimant. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 22. In proceedings where the Minister is making an application to vacate or to cease refugee protection, Minister's counsel will start the questioning, followed by the member, and counsel for the protected person. Where the Minister's counsel requests another chance to question at the end, the member will allow it if the member is satisfied that new matters were raised during questioning by the other participants. 23. The member may vary the order of questioning in exceptional circumstances.", - "current_to": "2007-05-25", + "text": "The Minister’s rationale was as follows: THAT on occasion persons are referred for medical and hospital treatment during the time they are thought to be under the jurisdiction of the Immigration authorities but before it is possible to satisfactorily determine their status as immigrants as defined in the Immigration Act, and because of the urgent nature of the disabling condition, treatment cannot be prudently postponed until their exact status has been completely established. THAT in other instances persons who other than immigrants as defined who are temporarily under the jurisdiction of the Immigration authorities become urgently in need of medical care or hospital treatment, and at the time it is not humanely possible to defer medical action until the determination of who, if any third party, is financially responsible for the cost of such action; THAT it is considered to be in the public interest and necessary for the maintenance of good public relations between the two Federal Departments concerned and the large number of individuals, societies and other agencies who work closely in association with these Departments during the ordinary course of Immigration operations, that the existing authority which is restrictive by reason of the term “immigrant” and also by reason of the conditions of “time” which are applied, be changed to permit the Department of National Health and Welfare to render the necessary medical assistance in these instances; THAT both Departments undertake to administer this authority in such a way as to confine its use to those occasions only when circumstances render it the best course of action in the public interest, and only when humane interests more or less obligate the Departments to accept the responsibility;…", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-18", + "id": "fca-37227-12", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 32", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 28–32", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. 19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas. 20. Dans les demandes d'asile où l'intervention du ministre porte sur une question autre que l'exclusion, la crédibilité par exemple, l'APR commence l'interrogatoire. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire; viennent ensuite le conseil du ministre puis le conseil du demandeur d'asile. 21. Dans les demandes où l'intervention du ministre porte sur la question de l'exclusion, le conseil du ministre interroge d'abord le demandeur d'asile; il est suivi de l'APR, du commissaire, puis du conseil du demandeur d'asile. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l'audience s'il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 22.", - "current_to": "2007-05-25", + "text": "The Federal Court’s overall conclusion was as follows (at paragraph 51): Properly interpreted, Order-in-Council P.C. 157-11/848 does not apply to the applicant and she is not eligible for [Program] coverage. The applicant is not an “immigrant” in the sense that she is applying for permanent residence in Canada. The applicant is not temporarily under the jurisdiction of immigration authorities. Nor does the applicant fall into one of the narrow, well-defined categories for which immigration authorities feel responsible.\n\nI agree with the general thrust of the conclusion in this passage. But I wish to amplify and clarify it somewhat. This is needed because parties might interpret this passage in future cases to ascribe to the Order in Council a scope of medical coverage greater than is warranted by its terms.\n\nAs is seen from the text of the Order in Council quoted above at paragraph 12, the Order in Council contains two paragraphs, (a) and (b). Each of these sets out certain eligibility criteria. In addition to satisfying the eligibility criteria in paragraphs (a) or (b), a claimant must also “[lack] the financial resources to pay [the medical] expenses.” (2) Paragraph (a) of the Order in Council\n\nParagraph (a) of the Order in Council provides as follows: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment…\n\nThe Order in Council does not define “immigrant.” However, the term “immigrant” was defined in The Immigration Act, S.C. 1952, c. 42, subsection 2(i) as “a person who seeks admission to Canada for permanent residence.”", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-19", + "id": "fca-37227-13", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 32–33", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 33", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Dans les demandes d’annulation ou de constat de perte d’asile présentées par le ministre, le conseil du ministre commence l’interrogatoire; il est suivi du commissaire, puis du conseil de la personne protégée. Le commissaire donne au conseil du ministre la possibilité de ré-interroger le témoin à la fin de l’audience s’il est convaincu que les interrogatoires par les autres participants ont soulevé de nouvelles questions. 23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR. D. ISSUES AND ANALYSIS Issue 1: Standard of review\n\nThe questions of law raised in this appeal about the validity of Guideline 7 are reviewable on a standard of correctness: they concern procedural fairness, statutory interpretation, and the unlawful fettering of discretion. The exercise of discretion by the Chairperson to choose a guideline rather than a formal rule as the legal instrument for amending the procedure of any of the Board’s Divisions by is reviewable for patent unreasonableness. Issue 2: Does Guideline 7 prescribe a hearing procedure that is in breach of claimants’ right to procedural fairness?", - "current_to": "2007-05-25", + "text": "Definitions of terms in statutes apply to terms contained in orders made under them: Interpretation Act, R.S.C. 1952, c. 158, section 38. It is not clear from the Order in Council whether it was made under the Immigration Act. But, in my view, the definition of “immigrant” in the Immigration Act sheds light on the meaning of that term in the Order in Council given that its subject-matter is related to immigration. I also note that the Minister of Health and Welfare, when offering a rationale for the Order in Council and in discussing its intended scope of coverage, referred to “immigrants as defined,” which must be taken to be “immigrants” as defined under the Immigration Act as it stood at that time: see paragraph 27, above.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-20", + "id": "fca-37227-14", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", "marginal_note": "paras 34–35", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Blanchard dealt thoroughly with this issue at paras. 36-92 of his reasons. He concluded that the jurisprudence did not require that, as a matter of fairness, claimants always be given the opportunity to be questioned first by their counsel (at paras. 38-53). He then considered (at paras. 68-90) the criteria set out in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras. 21-28 (“Baker”), for determining where to locate refugee protection hearings on the procedural spectrum from the informal to the judicial. Largely on the basis of the adjudicative nature of the RPD’s functions, the finality of its decision, and the importance of the individual rights at stake, he concluded (at para. 75) that “a higher level of procedural protection is warranted”.\n\nHowever, recognizing also that the content of the duty of fairness varies with context, Justice Blanchard noted that Parliament had chosen an inquisitorial procedural model for the determination of refugee claims by the RPD, in the sense that there is no party opposing the claim, except in the rare cases when the Minister intervenes to oppose a claim on exclusion grounds. Consequently, in the overwhelming majority of cases, the task of probing the legitimacy of claims inevitably falls to the RPO, who questions the claimant on behalf of the member, and/or to the member of the RPD conducting the hearing, especially when no RPO is present. This is an important reason for concluding that not all the elements of the adversarial procedural model followed in the courts are necessarily required for a fair hearing of a refugee claim: see paras. 72-75.", - "current_to": "2007-05-25", + "text": "In my view, only those who seek admission to Canada for permanent residence on or before entry to Canada fall under paragraph (a). Paragraph (a) uses the term “immigrant,” meaning “a person who seeks admission to Canada for permanent residence,” and the express wording of paragraph (a) shows that person seeking permanent residence must satisfy one of two conditions: (i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or (ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.” A fair reading of the Order in Council is that the “care and maintenance” is at the direction of the immigration authorities who met the person upon entry to Canada. In my view, this is a fair reading in light of the history of the Order in Council, reviewed by the Federal Court at paragraphs 30-37, which shows that this medical coverage program was always focused on those entering Canada for the first time, not on those who had already arrived in Canada.\n\nThe appellant does not qualify under either of these conditions. She was not admitted into Canada as an applicant for permanent residence. She was not in transit between entry and destination. The immigration authorities did not direct her “care and maintenance pending placement in employment.” The appellant was simply a visitor who decided to remain in Canada, contrary to Canada’s immigration law. (3) Paragraph (b) of the Order in Council", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-21", + "id": "fca-37227-15", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 36–37", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 36–39", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Blanchard also acknowledged that claimants may derive tactical advantages from being taken through their story by their own lawyer before being subjected to questioning by the RPO, who will typically focus on inconsistencies, gaps, and improbabilities in the narrative found in the claimant’s personal information form (“PIF”) and any supporting documentation, as well as any legal weaknesses in the claim. The tactical advantage of questioning first may be particularly significant in refugee hearings because of the vulnerability and anxiety of many claimants, as a result of: their inability to communicate except through an interpreter; their cultural backgrounds; the importance for them of the RPD’s ultimate decision; and the psychological effects of the harrowing events experienced in their country of origin.\n\nNonetheless, Justice Blanchard concluded that these considerations do not necessarily rise to the level of unfairness. Indeed, in addition to shortening the hearing, questioning by the RPO may also serve to improve the quality of the hearing by focusing it and enabling a claimant’s counsel to make sure that aspects of the claim troubling the member are fully dealt with when the claimant comes to tell his or her story. Consequently, in order to be afforded their right to procedural fairness, claimants need not normally be given the opportunity to be questioned by their counsel before being questioned by the RPO and/or RPD member.", - "current_to": "2007-05-25", + "text": "Paragraph (b) of the Order in Council provides as follows: (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer…\n\nParagraph (b) refers to “a person,” not an “immigrant,” the term used in paragraph (a). As a result, paragraph (b) covers more than those seeking permanent residence in Canada.\n\nOne requirement that must be met under paragraph (b) is that the person is “subject to Immigration jurisdiction” or is a person “for whom the Immigration authorities feel responsible.”\n\nAt paragraph 46-50 of its reasons, the Federal Court interpreted these phrases in light of their plain wording and the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957, excerpts of which are reproduced at paragraph 27, above. The Federal Court held (at paragraph 49) that those “subject to Immigration jurisdiction” are: …those persons who are passing through a port of entry and thus subject to the jurisdiction of the Immigration authorities, those persons whose status is being processed by the Immigration authorities, and those persons under detention and in the custody of the Immigration authorities. Persons temporarily under the jurisdiction of the Immigration authorities would also include refugee claimants… I agree with this conclusion and the reasons the Federal Court offered in support of it (at paragraphs 46-50).", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-22", + "id": "fca-37227-16", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", - "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 38–39", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", + "section": "", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 40–43", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Justice Blanchard noted, for example, that RPD members receive training to sensitize them to the accommodations needed when questioning vulnerable claimants, that claimants may supplement or modify the information in their PIF and adduce evidence before the hearing, and that expert evidence indicated that vulnerable claimants’ ability to answer questions fully, correctly and clearly is likely to depend more on the tone and style of questioning than on the order in which it occurs.\n\nMoreover, the duty of fairness forbids members from questioning in an overly aggressive and badgering manner, or in a way that otherwise gives rise to a reasonable apprehension of bias. Fairness also requires that claimants be given an adequate opportunity to tell their story in full, to adduce evidence in support of their claim, and to make submissions relevant to it. To this end, fairness may also require that, in certain circumstances, a claimant be afforded the right to be questioned first by her or his counsel. In addition, Guideline 7 recognizes that there will be exceptional cases in which, even though not necessarily required by the duty of fairness, it will be appropriate for the RPD to depart from the standard order of questioning.", - "current_to": "2007-05-25", + "text": "However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.\n\nParagraph (b) contains another requirement, expressed in the phrase “and who has been referred for examination and/or treatment by an authorized Immigration officer.” Does that phrase apply only to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer”? Or does it apply both to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer” and to those who are “subject to Immigration jurisdiction”?\n\nIn my view, the latter must be the correct interpretation: all those qualified under paragraph (b) must have been “referred for examination and/or treatment by an authorized Immigration officer.”\n\nThis interpretation is supported by the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see paragraph 27, above.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-23", + "id": "fca-37227-17", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 40–42", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 44–46", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "I agree with Justice Blanchard’s conclusion on this issue and have little useful to add to his reasons. Before us, counsel did not identify any error of principle in the Applications Judge’s analysis nor produce any binding judicial authority for the proposition that it is a breach of the duty of fairness to deny claimants the right to be questioned first by their own counsel. Criticisms were directed more to the weight that Justice Blanchard gave to some of the evidence and the factors to be considered. I can summarize as follows the principal points made in this Court by counsel.\n\nFirst, the importance of the individual rights potentially at stake in refugee protection proceedings indicates a court-like hearing, in which the party with the burden of proof goes first: see, for example, Can-Am Realty Ltd. v. Canada (1993), 69 F.T.R. 63 at 63-64. I agree at a general level that the seriousness of the rights involved in the determination of a refugee claim, as well as the generally “judicial” character of the oral hearings held by the RPD, militate in favour of affording claimants a high degree of procedural protection. However, its details must also be tailored to fit the inquisitorial and relatively informal nature of the hearing established by Parliament, as well as the RPD’s high volume case load, considerations which reduce the power of the claim to aspects of the adversarial model used in courts, including the order of questioning.\n\nSecond, the procedure set out in Guideline 7 is derived from the erroneous notion that the RPD is a board of inquiry, not an adjudicator. Unlike those appearing at inquiries, refugee claimants have the burden of proving a claim, which the RPD adjudicates.", - "current_to": "2007-05-25", + "text": "Finally, it must be remembered that in 1957, when the Order in Council was passed, Canada did not have a government-administered medicare scheme. Canadians were obligated to pay for their own health care or arrange for insurance coverage. Given that historical context, it does not make sense that all those “subject to Immigration jurisdiction” would have emergency medical coverage courtesy of the state, even if not specifically “referred for examination and/or treatment by an authorized Immigration officer”. I would add that there is no evidence before the Court to suggest that paragraph (b) was ever interpreted in that way.\n\nGiven this interpretation, the appellant does not qualify under paragraph (b). Upon entry to Canada, she did not claim a status other than visitor and the Immigration authorities were not processing any other status. She was not in the custody of the Immigration authorities, nor was she a refugee claimant. At no time was she “referred for examination and/or treatment by an authorized Immigration officer.” At no time did the “Immigration authorities feel responsible” for her. The appellant was just a visitor who decided to remain in Canada, contrary to Canada’s immigration law.\n\nFor the foregoing reasons, I find that the appellant was ineligible to receive medical coverage under the Order in Council. Therefore, the Director was correct in deciding to deny the appellant medical coverage and the Federal Court was correct in upholding the Director’s decision. F. Are the appellant’s rights under sections 7 and 15 of the Charter infringed? (1) A preliminary observation", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-24", + "id": "fca-37227-18", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 43–44", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 47–51", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "I do not agree. The Board correctly recognizes that the RPD’s procedural model is more inquisitorial in nature, unlike that of the Immigration Appeal Division (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84 at para. 82). I cannot conclude on the basis of the evidence as a whole that the Board adopted the standard order of questioning in the mistaken view that the RPD is a board of inquiry, even though it decides claimants’ legal rights in the cases which they bring to it for adjudication and claimants bear the burden of proof. This conclusion is not undermined by a training document (“Questioning 101”), prepared by the Board’s Professional Development Branch in 2004 for members and RPOs, which contains a somewhat misleading reference to the compatibility of the standard order of questioning with “a board of inquiry model”.\n\nA relatively inquisitorial procedural form may reduce the degree of control over the process often exercisable by counsel in adversarial proceedings, especially before inexperienced tribunal members or those who lack the confidence that legal training can give. Nonetheless, the fair adjudication of individual rights is perfectly compatible with an inquisitorial process, where the order of questioning is not as obvious as it generally is in an adversarial hearing.", - "current_to": "2007-05-25", + "text": "The appellant raised the constitutional issues for the first time in her application for judicial review in the Federal Court and filed her evidence on those issues in that Court. Before the Director, she did not raise the constitutional issues or offer evidence on those issues.\n\nSometimes this is a fatal flaw that prevents the reviewing court from considering the constitutional issue on judicial review: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paragraphs 38-40, [2005] 1 S.C.R. 257.\n\nIn this case, however, the objection would not lie if the Director did not have the jurisdiction to decide the constitutional issues: Okwuobi, supra, at paragraphs 28-34 and 38; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In that circumstance, the Federal Court would be the first place where the constitutional issues could be determined.\n\nThe point was not argued before us and, given my ultimate disposition of the constitutional issues, I need not decide whether the objection lies in this case. (2) The standard of review\n\nWhat is the standard of review of the Federal Court’s decision on the constitutional issues? Since the Director did not consider the constitutional issues, we must look to the law concerning appellate standards of review, not administrative law standards of review.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-25", + "id": "fca-37227-19", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 45–47", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 52–54", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Third, placing RPD members in the position of asking the claimant questions first, when no RPD is present, distorts their judicial role by thrusting them into the fray, thereby creating a reasonable apprehension of bias by making them appear to be acting as both judge and prosecutor. Guideline 7 is particularly burdensome for members now that panels normally comprise a single member, and there is often no RPO present to assume the primary responsibility for questioning the claimant on behalf of the Board.\n\nI disagree. Adjudicators can and should normally play a relatively passive role in an adversarial process, because the parties are largely responsible for adducing the evidence and arguments on which the adjudicator must decide the dispute. In contrast, members of the RPD, sometimes assisted by an RPO, do not have this luxury. In the absence in most cases of a party to oppose the claim, members are responsible for making the inquiries necessary, including questioning the claimant, to determine the validity of the claim: see IRPA, paragraph 170(a); Sivisamboo v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 741 (T.D.) at 757-78; Shahib v. Canada (Minister of Citizenship and Immigration), 2005 FC 1250 at para. 21. The fact that the member or the RPO may ask probing questions does not make the proceeding adversarial in the procedural sense.\n\nTo the extent that statements in Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.), suggest that a member of the RPD hearing a refugee claim is restricted to asking the kind of questions that a judge in a civil or criminal proceeding may ask, they are, in my respectful opinion, incorrect, especially when no RPO is present.", - "current_to": "2007-05-25", + "text": "The normal rule on appeals is that on pure questions of law or questions of mixed fact and law where the law predominates or is “extricable”, the standard of review is correctness. On questions of fact, or questions of mixed fact and law that are primarily factual in nature, the standard of review is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401.\n\nOn occasion, the Supreme Court has stated that the appellate standard of review on decisions in constitutional cases is correctness and has used language to suggest that there can be no deference on any question, factual or legal, in a constitutional case: see, e.g., Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paragraph 36, [2003] 3 S.C.R. 3 (“[d]eference ends, however, where the constitutional rights that the courts are charged with protecting begin”).\n\nI do not take these statements to mean that in a constitutional case an appellate court can readily interfere with factual findings and exercises of discretion that are heavily suffused with facts. There are many Supreme Court decisions that confirm that deference on such matters is still warranted: see, e.g., Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 at paragraph 34, 2008 SCC 23; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 44-45, 2003 SCC 30; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 68; R. v. Belnavis, [1997] 3 S.C.R. 341; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at paragraphs 188-189.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-26", + "id": "fca-37227-20", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 48–50", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 55–58", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "The fact that members question the claimant first when there is no RPO present does not distort the inquisitorial process established by IRPA and would not give rise to a reasonable apprehension of bias on the part of a person who was informed of the facts and had thought the matter through in a practical manner. Inquisitorial processes of adjudication are not unfair simply because they are relatively unfamiliar to common lawyers.\n\nFourth, Guideline 7 interferes with claimants’ right to the assistance of counsel because it prevents them from being taken through their story by their counsel before being subject to the typically more sceptical questioning by the RPO. I do not agree. Guideline 7 does not curtail counsel’s participation in the hearing; counsel is present throughout and may conduct an examination of the client to ensure that the claimant’s testimony is before the decision-maker. The right to be represented by counsel does not include the right of counsel to determine the order of questioning or, for that matter, any other aspect of the procedure to be followed at the hearing.\n\nFinally, no statistical evidence was adduced to support the allegation that Guideline 7 jeopardizes the ability of the RPD accurately to determine claims for refugee protection. There is simply no evidence to establish what impact, if any, the introduction of Guideline 7 has had on acceptance rates.", - "current_to": "2007-05-25", + "text": "In other words, the normal appellate standards of review discussed in Housen and H.L. apply in constitutional cases. However, as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise. (3) Section 7 of the Charter\n\nIn the Federal Court and in this Court, the appellant submits that her exclusion from medical coverage under the Order in Council infringes her section 7 rights to life and security of the person and her right not to be deprived thereof except in accordance with the principles of fundamental justice. (a) Rights to life and security of the person\n\nThe Federal Court found that the appellant’s rights to life and security of the person under section 7 of the Charter were infringed (at paragraph 91): The evidence before the Court establishes both that the [appellant] has experienced extreme delay in receiving medical treatment and that she has suffered severe psychological stress resulting from the uncertainty surrounding whether she will receive the medical treatment she needs. More importantly, the record before the Court establishes that the applicant’s exclusion from…coverage [under the Order in Council] has exposed her to a risk to her life as well as to long-term, and potentially irreversible, negative health consequences…. In my view, the applicant has established a deprivation of her right to life, liberty and security of the person that was caused by her exclusion from the [Order in Council].\n\nThis finding is open to challenge on two grounds. I would reject the first ground, but accept the second. - I -", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-27", + "id": "fca-37227-21", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 51–53", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 59–61", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In summary, the procedure prescribed by Guideline 7 is not, on its face, in breach of the Board’s duty of fairness. However, in some circumstances, fairness may require a departure from the standard order of questioning. In those circumstances, a member’s refusal of a request that the claimant be questioned first by her counsel may render the determination of the claim invalid for breach of the duty of fairness.\n\nConsequently, if the Chairperson had implemented the reform to the standard order of questioning at refugee determination hearings in a formal rule of procedure issued in accordance with paragraph 161(1)(a), it would have been beyond challenge on the grounds advanced in this appeal respecting the duty of fairness, including bias. The somewhat technical question remaining is whether the Chairperson’s choice of legislative instrument (that is, a guideline rather than a formal rule of procedure) to implement the procedural change was in law open to him. Issue 3: Is Guideline 7 unauthorized by paragraph 159(1)(h) because it is a fetter on RPD members’ exercise of discretion in the conduct of hearings?\n\nAs already noted, Justice Blanchard and, in Benitez, Justice Mosley, reached different conclusions on whether Guideline 7 unlawfully fettered the discretion of members of the RPD in deciding the order of questioning at a refugee determination hearing. The records in the two applications were not identical. In particular, there was more evidence before Justice Mosley, comprising some forty decisions and excerpts from transcripts of RPD hearings, that RPD members are willing to recognize exceptional cases in which it is appropriate to depart from the standard order of questioning.", - "current_to": "2007-05-25", + "text": "First, the respondent disputes the Federal Court’s factual finding that the appellant has been exposed to delays and risks. On the facts, the respondent submits that the appellant has been able to obtain hospital admissions and surgeries when required and has been under the active care of both a family doctor and a number of specialists. The respondent adds that in Ontario, where the appellant lives, hospitals cannot deny emergency medical treatment to anyone, when to do so would endanger life: Public Hospitals Act, R.S.O. 1990, c. P.40. As a result, the respondent submits that the appellant has not established a serious deprivation of her right to life or security of the person under section 7 of the Charter.\n\nThe respondent’s submissions gain force from legal proposition that the effects on the protected interests under section 7 must be more than trivial. They must be serious: Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at paragraph 123, [2005] 1 S.C.R. 791; R. v. Morgentaler, [1988] 1 S.C.R. 30 at pages 56 and 173; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paragraph 60.\n\nBearing in mind the standard of review, I am not prepared to interfere with the Federal Court’s factual conclusion that the appellant was exposed to a significant risk to her life and health, a risk significant enough to trigger a violation of her rights to life and security of the person. The Federal Court had an evidentiary basis for its finding.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-28", + "id": "fca-37227-22", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 54–55", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 62–63", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In the circumstances of these appeals, it is appropriate to consider all the evidence before both judges. From a practical point of view, it would be anomalous if this Court were to reach different conclusions about the validity of Guideline 7 in two cases set down to be heard one after the other. However, I do not attach much, if any, significance to the differences in the records. Justice Blanchard properly based his conclusion, for the most part, on what he saw as the mandatory language of Guideline 7. (i) Rules, discretion and fettering\n\nEffective decision-making by administrative agencies often involves striking a balance between general rules and the exercise of ad hoc discretion or, to put it another way, between the benefits of certainty and consistency on the one hand, and of flexibility and fact-specific solutions on the other. Legislative instruments (including such non-legally binding “soft law” documents as policy statements, guidelines, manuals, and handbooks) can assist members of the public to predict how an agency is likely to exercise its statutory discretion and to arrange their affairs accordingly, and enable an agency to deal with a problem comprehensively and proactively, rather than incrementally and reactively on a case by case basis.", - "current_to": "2007-05-25", + "text": "At paragraphs 6 to 13, the Federal Court reviewed the appellant’s medical condition while she has remained in Canada. Before 2006, she only required minor medical care. After 2006, however, her medical needs have substantially increased as her health has worsened. Her conditions include uterine fibroids, uncontrolled hypertension, nephrotic syndrome, poorly controlled diabetes, a pulmonary embolism, decreased mobility, shortness of breath, hyperlipidemia and anxiety.\n\nThe Federal Court reviewed the appellant’s access to health care services and medication (at paragraphs 6 to 9). Before 2006, the appellant was able to work. She earned enough income to pay for the minor medical care and medication that she required. After 2006, her medical needs surpassed her ability to pay but she was still able to obtain some treatment. There is some evidence that she had had access to medical assistance at a community health centre. In 2008 she underwent an operation at Humber River Regional Hospital for the removal of uterine fibroids. She was billed for that surgery, but was unable to pay the bill. Later in 2008, the appellant was admitted to St. Michael’s Hospital for ten days for uncontrolled hypertension. In 2009, she was admitted to St. Michael’s Hospital for eight days during which a pulmonary embolism was found. She was unable to pay for the medication to treat that, but the hospital gave her a supply.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-29", + "id": "fca-37227-23", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 56–57", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 64–66", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Though the use of “soft law” an agency can communicate prospectively its thinking on an issue to agency members and staff, as well as to the public at large and to the agency’s “stakeholders” in particular. Because “soft law” instruments may be put in place relatively easily and adjusted in the light of day-to-day experience, they may be preferable to formal rules requiring external approval and, possibly, drafting appropriate for legislation. Indeed, an administrative agency does not require an express grant of statutory authority in order to issue guidelines and policies to structure the exercise of its discretion or the interpretation of its enabling legislation: Ainsley Financial Corp. v. Ontario (Securities Commission) (1994), 121 D.L.R. (4th) 79 (Ont. C.A.) at 83 (“Ainsley”).\n\nBoth academic commentators and the courts have emphasized the importance of these tools for good public administration, and have explored their legal significance. See, for example, Hudson N. Janisch, “The Choice of Decision-Making Method: Adjudication, Policies and Rule-Making” in Special Lectures of the Law Society of Upper Canada 1992, Administrative Law: Principles, Practice and Pluralism; David J. Mullan, Administrative Law (Toronto: Irwin Law, 2001) at 374-79; P.P. Craig, Administrative Law, 5th edn. (London: Thomson, 2003) at 398-405, 536-40; Capital Cities Communications Inc. v. CRTC, [1978] 2 S.C.R. 141 at 171; Vidal v. Canada (Minister of Employment and Immigration) (1991), 49 Admin. L.R. 118 (F.C.T.D.) at 131; Ainsley at 82-83.", - "current_to": "2007-05-25", + "text": "Evidence was before the Federal Court suggesting that the appellant’s access to health care services and medication was impaired. While eventually the appellant did have her uterine fibroids surgically removed at Humber River Regional Hospital in 2006, at first she was denied service at Woman’s College Hospital due to her lack of insurance coverage and her inability to pay. In 2008, while at St. Michael’s Hospital, a test aimed at determining the cause of her nephritic syndrome could not be performed owing to her inability to pay for treatment and for the medicine that might be necessary if complications arose.\n\nAlso before the Federal Court was expert medical evidence. Overall, this evidence, accepted by the Federal Court, suggested that (at paragraph 91): [if the appellant] were to not receive timely and appropriate health care and medications in the future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary embolism), severe medium-term complications (such as kidney failure and subsequent requirement for dialysis), and other long-term complications of poorly-controlled diabetes and hypertension (such as blindness, foot ulcers, leg amputation, heart attack, and stroke).\n\nGiven this evidence, and bearing in mind the deferential standard of review that must be applied to the Federal Court’s findings of fact, I would not give effect to the respondent’s submission that the Federal Court erred in finding that the appellant was exposed to serious health risks. - II -", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-30", + "id": "fca-37227-24", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 58–60", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 67–70", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Legal rules and discretion do not inhabit different universes, but are arrayed along a continuum. In our system of law and government, the exercise of even the broadest grant of statutory discretion which may adversely affect individuals is never absolute and beyond legal control: Roncarelli v. Duplessis, [1959] S.C.R. 121 at 140. (per Rand J.). Conversely, few, if any, legal rules admit of no element of discretion in their interpretation and application: Baker at para. 54.\n\nAlthough not legally binding on a decision-maker in the sense that it may be be an error of law to misinterpret or misapply them, guidelines may validly influence a decision-maker’s conduct. Indeed, in Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, McIntyre J., writing for the Court, said (at 6): The fact that the Minister in his policy guidelines issued in the Notice to Importers employed the words: “If Canadian product is not offered at the market price, a permit will normally be issued; …” does not fetter the exercise of that discretion. [Emphasis added] The line between law and guideline was further blurred by Baker at para. 72, where, writing for a majority of the Court, L’Heureux-Dubé J. said that the fact that administrative action is contrary to a guideline “is of great help” in assessing whether it is unreasonable.\n\nThe use of guidelines, and other “soft law” techniques, to achieve an acceptable level of consistency in administrative decisions is particularly important for tribunals exercising discretion, whether on procedural, evidential or substantive issues, in the performance of adjudicative functions. This is especially true for large tribunals, such as the Board, which sit in panels; in the case of the RPD, as already noted, a panel typically comprises a single member.", - "current_to": "2007-05-25", + "text": "As mentioned above, based on this evidence, the Federal Court found that the Order in Council created a risk to the appellant. That is true in the sense that if the Order in Council were broader and provided her with all of the treatment and medication she needs, all risk would be averted. But that is not sufficient legally to demonstrate that the Order in Council has caused injury to the appellant’s rights to life and security of the person.\n\nIt is incumbent on the appellant to establish that the failure of the Order in Council to provide medical coverage to her is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter: TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114 at paragraph 11.\n\nThe provision of public health coverage and the regulation of access to it is primarily the responsibility of the provinces and the territories, with the federal government playing a role in funding, the setting of standards under the Canada Health Act, R.S.C. 1985, c C-6 and, occasionally, regulation in specific areas under its criminal law power: Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457.\n\nIf there is an operative cause of the appellant’s difficulties, it is the fact that although she is getting some treatment under provincial law (see paragraph 59, above), that law does not go far enough to cover all of her medical needs.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-31", + "id": "fca-37227-25", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 61–62", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 71–73", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "It is fundamental to the idea of justice that adjudicators, whether in administrative tribunals or courts, strive to ensure that similar cases receive the same treatment. This point was made eloquently by Gonthier J. when writing for the majority in Consolidated-Bathurst Packaging Ltd. v. International Woodworkers of America, Local 2-69, [1990] 1 S.C.R. 282 at 327 (“Consolidated-Bathurst”): It is obvious that coherence in administrative decision-making must be fostered. The outcome of disputes should not depend on the identity of the persons sitting on the panel for this result would be “difficult to reconcile with the notion of equality before the law, which is one of the main corollaries of the rule of law, and perhaps also the most intelligible one”. [Citation omitted]\n\nNonetheless, while agencies may issue guidelines or policy statements to structure the exercise of statutory discretion in order to enhance consistency, administrative decision-makers may not apply them as if they were law. Thus, a decision made solely by reference to the mandatory prescription of a guideline, despite a request to deviate from it in the light of the particular facts, may be set aside, on the ground that the decision-maker’s exercise of discretion was unlawfully fettered: see, for example, Maple Lodge Farms at 7. This level of compliance may only be achieved through the exercise of a statutory power to make “hard” law, through, for example, regulations or statutory rules made in accordance with statutorily prescribed procedure.", - "current_to": "2007-05-25", + "text": "The appellant has attempted to obtain coverage under the Ontario Health Insurance Plan. Ontario refused coverage because, as a person in Canada contrary to Canadian immigration law, the appellant is not a “resident” of Ontario under R.R.O. 1990, Regulation 552, section 1.4, enacted under the Health Insurance Act, R.S.O. 1990, c. H.6. She did not judicially review Ontario’s refusal, nor did she argue that Ontario’s eligibility requirements violate her rights under sections 7 and 15 of the Charter. Nor did she challenge the Public Hospitals Act, supra, and argue that it is constitutionally underinclusive or over restrictive. The record reveals no attempt by the appellant to assert section 7 or 15 of the Charter against provincial legislation that limits her access to health care.\n\nFurther, and most fundamentally, the appellant by her own conduct – not the federal government by its Order in Council – has endangered her life and health. The appellant entered Canada as a visitor. She remained in Canada for many years, illegally. Had she acted legally and obtained legal immigration status in Canada, she would have been entitled to coverage under the Ontario Health Insurance Plan: see section 1.4 of Regulation 552, supra.\n\nIn my view, the appellant has not met her burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter. (b) The principles of fundamental justice", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-32", + "id": "fca-37227-26", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 63–64", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 74–77", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In addition, the validity of a rule or policy itself has sometimes been impugned independently of its application in the making of a particular decision. Ainsley is the best known example. That case concerned a challenge to the validity of a non-statutory policy statement issued by the Ontario Securities Commission setting out business practices which would satisfy the public interest in the marketing of penny stocks by certain securities dealers. The policy also stated that the Commission would not necessarily impose a sanction for non-compliance on a dealer under its “public interest” jurisdiction, but would consider the particular circumstances of each case.\n\nWriting for the Court in Ainsley, Doherty J.A. adopted the criteria formulated by the trial judge for determining if the policy statement was “a mere guideline” or was “mandatory”, namely, its language, the practical effect of non-compliance, and the expectations of the agency and its staff regarding its implementation. On the basis of these criteria, Doherty J.A. concluded that the policy statement was invalid. He emphasized, in particular, its minute detail, which “reads like a statute or regulation” (at 85), and the threat of sanctions for non-compliance. He found this threat to be implicit in the Commission’s pronouncement that the business practices it described complied with the public interest, and was evident in the attitude of enforcement staff ,who treated the policy as if it were a statute or regulation, breach of which was liable to trigger enforcement proceedings. (ii) Guideline 7 and the fettering of discretion (a) Is Guideline 7 delegated legislation?", - "current_to": "2007-05-25", + "text": "Even if the appellant had discharged the burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person, she would still have to establish that the deprivation of her rights to life and security of the person was contrary to the principles of fundamental justice. Here as well, the appellant has fallen short.\n\nThe appellant submits at paragraph 34 of her memorandum of fact and law that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.”\n\nAt the root of the appellant’s submission are assertions that the principles of fundamental justice under section 7 of the Charter require our governments to provide access to health care to everyone inside our borders, and that access cannot be denied, even to those defying our immigration laws, even if we wish to discourage defiance of our immigration laws. I reject these assertions. They are no part of our law or practice, and they never have been.\n\nThe Charter does not confer a freestanding constitutional right to health care: Chaoulli, supra at paragraph 104 (per McLachlin C.J.C. and Major J.).", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-33", + "id": "fca-37227-27", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 65–67", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 78–80", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "An initial question is whether guidelines issued under IRPA, paragraph 159(1)(h) constitute delegated legislation, having the full force of law (“hard law”). If they do, Guideline 7 can no more be characterized as an unlawful fetter on members’ exercise of discretion with respect to the order of questioning than could a rule of procedure to the same effect issued under IRPA, paragraph 161(1))(a): Bell Canada v. Canadian Telephone Association Employees, 2003 SCC 36, [2003] 1 S.C.R. 884 at para 35 (“Bell Canada”).\n\nIn my view, despite the express statutory authority of the Chairperson to issue guidelines, they do not have the same legal effects that statutory rules can have. In particular, guidelines cannot lay down a mandatory rule from which members have no meaningful degree of discretion to deviate, regardless of the facts of the particular case before them. The word “guideline” itself normally suggests some operating principle or general norm, which does not necessarily determine the result of every dispute.\n\nHowever, the meaning of “guideline” in a statute may depend on context. For example, in Society of the Friends of Oldman River v. Canada (Minister of the Environment), [1992] 1 S.C.R. 3 at 33-37, La Forest J. upheld the validity of mandatory environmental assessment guidelines issued under section 6 of the Department of the Environment Act, R.S.C. 1985, c. E-10, which, he held, constituted delegated legislation and, as such, were legally binding.", - "current_to": "2007-05-25", + "text": "The results reached in other recent cases confirm that the Charter does not confer a freestanding constitutional right to health care. In these recent cases, courts have denied claims under the Charter to obtain state funding or financial assistance for necessary treatments: Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657; Ali v. Canada, 2008 FCA 190; Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.); Eliopoulos v. Ontario (2006), 82 O.R. (3d) 321 (C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, (2008), 91 O.R. (3d) 412 (C.A.).\n\nIn words apposite to the case at Bar, Justice Linden of this Court wrote: The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at paragraph 36, [2007] 3 F.C.R. 169).\n\nThese judicial statements and holdings suggest that the principle proffered by the appellant cannot qualify as a principle of fundamental justice under section 7 of the Charter. It is not a “legal principle” that is “vital or fundamental to our societal notion of criminal justice,” nor is there “a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate”: R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74 at paragraphs 112-113, [2003] 3 S.C.R. 571; R. v. D.B., 2008 SCC 25 at paragraph 46, [2008] 2 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paragraph 23, [2010] 1 S.C.R. 44.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-34", + "id": "fca-37227-28", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 68–70", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 81–82", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, Oldman River is distinguishable from the case before us. Section 6 of the Department of the Environment Act provided that guidelines were to be issued by an “order” (“arrêté”) of the Minister and approved by the Cabinet. In contrast, only rules issued by the Chairperson require Cabinet approval, guidelines (“directives”) do not. It would make little sense for IRPA to have conferred powers on the Chairperson to issue two types of legislative instrument, guidelines and rules, specified that rules must have Cabinet approval, and yet given both the same legal effect.\n\nGuidelines issued by the Human Rights Commission pursuant to subsection 27(2) of the Canadian Human Rights Act, R.S.C. 1985, c. H-6, have also been treated as capable of having the full force of law, even though they are made by an independent administrative agency and are not subject to Cabinet approval: Canada (Attorney General) v. Public Service Alliance of Canada, [2000] 1 F.C. 146 (T.D.) at paras. 136-41; Bell Canada at paras. 35-38.\n\nIn Bell Canada, LeBel J. held (at para. 37), “on a functional and purposive approach to the nature” of the Commission’s guidelines, that they were “akin to regulations”, a conclusion supported by the use of the word “ordonnance” in the French text of subsection 27(2) of the Canadian Human Rights Act. In addition, subsection 27(3) expressly provides that guidelines issued under subsection 27(2) are binding on the Commission and on the person or panel assigned to inquire into a complaint of discrimination referred by the Commission under subsection 49(2) of the Act.", - "current_to": "2007-05-25", + "text": "The appellant invokes other principles of fundamental justice under section 7. She submits that her exclusion from coverage by the Order in Council is arbitrary. She rightly submits that the Supreme Court has recognized that an arbitrary law – a law that “bears no relation to, or is inconsistent with, the objective that lies behind [it]” – will be contrary to the principles of fundamental justice: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paragraph 103, [2009] 2 S.C.R. 181; Chaoulli, supra at paragraph 104 (per McLachlin C.J.C and Major J.), and Malmo‑Levine, supra at paragraph 135.\n\nHowever, the Order in Council is not arbitrary. It is related to and consistent with the objective that lies behind it. As a general matter, as the analysis in paragraphs 31-46 above shows, the Order in Council is meant to provide temporary, emergency assistance to those who lawfully enter Canada and find themselves under the jurisdiction of the immigration authorities, or for whom the immigration authorities feel responsible. The Order in Council is not meant to provide ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-35", - "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "id": "fca-37227-29", + "doc_type": "caselaw", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 71–74", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 83–86", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In my opinion, the scheme of IRPA is different, particularly the inclusion of a potentially overlapping rule-making power and the absence of a provision that guidelines are binding on adjudicators. In addition, the word “directives” in the French text of paragraph 159(1)(h) suggests a less legally authoritative instrument than “ordonnance”.\n\nI conclude, therefore, that, even though issued under an express statutory grant of power, guidelines issued under IRPA, paragraph 159(1)(h) cannot have the same legally binding effect on members as statutory rules may. (b) Is Guideline 7 an unlawful fetter on members’ discretion?\n\nSince guidelines issued by the Chairperson of the Board do not have the full force of law, the next question is whether, in its language and effect, Guideline 7 unduly fetters RPD members’ discretion to determine for themselves, case-by-case, the order of questioning at refugee protection hearings. In my opinion, language is likely to be a more important factor than effect in determining whether Guideline 7 constitutes an unlawful fetter. It is inherently difficult to predict how decision-makers will apply a guideline, especially in an agency, like the Board, with a large membership sitting in panels.\n\nConsequently, since the language of Guideline 7 expressly permits members to depart from the standard order of questioning in exceptional circumstances, the Court should be slow to conclude that members will regard themselves as bound to follow the standard order, in the absence of clear evidence to the contrary, such as that members have routinely refused to consider whether the facts of particular cases require an exception to be made.", - "current_to": "2007-05-25", + "text": "In this regard, I agree with the Federal Court and adopt its words (at paragraph 94): I do not accept the applicant’s submission that her exclusion from health care is not consistent with principles of fundamental justice because it is arbitrary. I see nothing arbitrary in denying financial coverage for health care to persons who have chosen to enter and remain in Canada illegally. To grant such coverage to those persons would make Canada a health-care safe-haven for all who require health care and health care services. There is nothing fundamentally unjust in refusing to create such a situation.\n\nThe appellant also submits that the Order in Council offends the principles of fundamental justice because it is unacceptably vague in the sense that it is unintelligible and impossible to interpret. This is a very high standard to meet and, accordingly, successful claims on this basis are extremely rare: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.\n\nThe appellant falls well short of establishing that high standard. As is evident from paragraphs 31-46 above, the Order in Council can be interpreted and a clear meaning can be gleaned from it.\n\nFinally, the appellant submits that the principles of fundamental justice must also take into account Canada’s obligations under various sources of international human rights law such as the right to life under article 6 of the International Covenant on Civil and Political Rights and rights to health under article 12 of the International Covenant on Economic, Social and Cultural Rights and article 5 of the International Convention on the Elimination of All forms of Racial Discrimination.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-36", + "id": "fca-37227-30", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 75–77", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 87–90", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "I turn first to language. The Board’s Policy on the Use of Chairperson’s Guidelines, issued in 2003, states that guidelines are not legally binding on members: section 6. The introduction to Guideline 7 states: “The guidelines apply to most cases heard by the RPD. However, in compelling or exceptional circumstances, the members will use their discretion not to apply some guidelines or to apply them less strictly”\n\nThe text of the provisions of Guideline 7 of most immediate relevance to this appeal. Paragraph 19 states that it “will be” standard practice for the RPO to question the claimant first; this is less obligatory than “must” or some similarly mandatory language. The discretionary element of Guideline 7 is emphasized in paragraph 19, which provides that, while “the standard practice will be for the RPO to start questioning the claimant” (emphasis added), a member may vary the order “in exceptional circumstances”.\n\nClaimants who believe that exceptional circumstances exist in their case must apply to the RPD, before the start of the hearing, for a change in the order of questioning. The examples, and they are only examples, of exceptional circumstances given in paragraph 23 suggest that only the most unusual cases will warrant a variation. However, the parameters of “exceptional circumstances” will no doubt be made more precise, and likely expanded incrementally, on a case-by-case basis.", - "current_to": "2007-05-25", + "text": "On the basis of Khadr, supra at paragraph 23, I accept that, in appropriate cases, courts can be assisted by these sources when defining the precise content of certain principles of fundamental justice under section 7. But in this case we are not at the point of defining the content of a principle of fundamental justice. We are not even at first base. The appellant has not offered a principle that meets the criteria set out in Malmo‑Levine, supra and D.B., supra for admission as a principle of fundamental justice under section 7 of the Charter.\n\nTherefore, I conclude that the appellant’s rights under section 7 are not infringed. (4) Section 15 of the Charter (a) General principles\n\nWhen assessing the merits of a subsection 15(1) claim, we must apply a two-part test: (1) whether the law creates a distinction that is based on an enumerated or analogous ground and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: Withler v. Canada (Attorney General), 2011 SCC 12 at paragraph 30; R. v. Kapp, 2008 SCC 41 at paragraph 17, [2008] 2 S.C.R. 483.\n\nThe first step tells us that not all distinctions, in and of themselves, are contrary to s. 15(1) of the Charter: Withler, supra at paragraph 31; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 at paragraph 188, [2009] 1 S.C.R. 222. Subsection 15(1) only covers distinctions made on the basis of the grounds enumerated in subsection 15(1), or grounds analogous to them.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-37", + "id": "fca-37227-31", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 78–79", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 91–94", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "I agree with Justice Blanchard’s conclusion (at para. 119) that the language of Guideline 7 is more than “a recommended but optional process”. However, as Maple Lodge Farms makes clear, the fact that a guideline is intended to establish how discretion will normally be exercised is not enough to make it an unlawful fetter, as long as it does not preclude the possibility that the decision-maker may deviate from normal practice in the light of particular facts: see Ha v. Canada (Minister of Citizenship and Immigration), 2004 FCA 49, [2004] 3 F.C.R. 195.\n\nTo turn to the effect of Guideline 7, there was evidence that, when requested by counsel, members of the RPD had exercised their discretion and varied the standard order of questioning in cases which they regarded as exceptional. No such request was made on behalf of Mr Thamotharem. In any event, members must permit a claimant to be questioned first by her or his counsel when the duty of fairness so requires.", - "current_to": "2007-05-25", + "text": "The second step tells us that the focus under subsection 15(1) is not differential treatment, but rather discrimination. Therefore, in order to succeed, a section 15 claimant must show that the impact of the law is discriminatory: Withler, supra at paragraph 31; Andrews, supra at page 182; Ermineskin Indian Band, supra at paragraph 188; Kapp, supra at paragraph 28.\n\nDiscrimination has been described as follows: …a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Andrews, supra, at pages 174-175.) (b) Application of the principles to this case\n\nThe appellant submits that her exclusion from the medical coverage afforded by the Order in Council infringed subsection 15(1) of the Charter because that exclusion was based on an enumerated and analogous ground, and was discriminatory.\n\nThe Federal Court rejected the appellant’s subsection 15(1) submission, primarily on the basis (at paragraphs 79-83) that the appellant had failed to establish that her exclusion from coverage under the Order in Council was based on an enumerated or analogous ground.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-38", + "id": "fca-37227-32", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 80–82", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 95–98", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In at least one case, however, a member wrongly regarded himself as having no discretion to vary the standard order of questioning prescribed in Guideline 7. On July 3, 2005, this decision was set aside on consent on an application for judicial review, on the ground that the member had fettered the exercise of his discretion, and the matter remitted for re-determination by a different member of the RPD: Baskaran v. Canada (Minister of Citizenship and Immigration) (Court File No. IMM-7189-04). Nonetheless, the fact that some members may erroneously believe that Guideline 7 removes their discretion to depart from the standard practice in exceptional circumstances does not warrant invalidating the Guideline. In such cases, the appropriate remedy for an unsuccessful claimant is to seek judicial review to have the RPD’s decision set aside.\n\nThere was also evidence from Professor Donald Galloway, an immigration and refugee law scholar, a consultant to the Board and a former Board member, that RPD members would feel constrained from departing from the standard order of questioning. However, he did not base his opinion on the actual conduct of members with respect to Guideline 7.\n\nIn short, those challenging the validity of Guideline 7 did not produce evidence establishing on a balance of probabilities that members rigidly apply the standard order of questioning without regard to its appropriateness in particular circumstances.", - "current_to": "2007-05-25", + "text": "I find no error in the Federal Court’s rejection of the appellant’s section 15 submissions. In my view, there are four main reasons why the appellant’s section 15 submissions must fail. - I -\n\nIn my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation. On this point, I substantially agree with the Federal Court reasons.\n\nIn this Court, the appellant suggests that the Order in Council creates a “primary distinction” enhanced by a “secondary intersecting ground.”\n\nThe primary distinction is said to be between foreign nationals possessing certain immigration status who are covered under the Order in Council, and other foreign nationals who possess another immigration status who are not covered. As we have seen, however, coverage is potentially available under paragraph (b) to all persons regardless of immigration status. For example, the appellant herself might have been covered by the Order in Council upon her arrival in Canada. Upon entry, she was legally admitted as a visitor. Had she been in desperate need of emergency medical attention at that time and could not otherwise afford it, and if the immigration authorities felt obligated to assist, she would have been covered by the Order in Council.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-39", + "id": "fca-37227-33", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 83", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 99", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "I recognize that members of the RPD must perform their adjudicative functions without improper influence from others, including the Chairperson and other members of the Board. However, the jurisprudence also recognizes that administrative agencies must be free to devise processes for ensuring an acceptable level of consistency and quality in their decisions, a particular challenge for large tribunals which, like the Board, sit in panels.", - "current_to": "2007-05-25", + "text": "Further, I do not accept that “immigration status” qualifies as an analogous ground under section 15 of the Charter, for many of the reasons set out in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 13, recently approved by the Supreme Court in Withler, supra at paragraph 33. “Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. See also Forrest v. Canada (A.G.), 2006 FCA 400 at paragraph 16; Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.) at paragraphs 133-136.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-40", + "id": "fca-37227-34", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 84", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 100–101", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Most notably, the Supreme Court of Canada in Consolidated-Bathurst upheld the Ontario Labour Relations Board’s practice of inviting members of panels who had heard but not yet decided cases to bring them to “full Board meetings”, where the legal or policy issues that they raised could be discussed in the absence of the parties. This practice was held not to impinge improperly on members’ adjudicative independence, or to breach the principle of procedural fairness that those who hear must also decide. Writing for the majority of the Court, Gonthier J. said (at 340): The institutionalization of the consultation process adopted by the Board provides a framework within which the experience of the chairman, vice-chairmen and members of the Board can be shared to improve the overall quality of its decisions. Although respect for the judicial independence of Board members will impede total coherence in decision making, the Board through this consultation process seeks to avoid inadvertent contradictory results and to achieve the highest degree of coherence possible under these circumstances. … The advantages of an institutionalized consultation process are obvious and I cannot agree with the proposition that this practice necessarily conflicts with the rules of natural justice. The rules of natural justice must have the flexibility required to take into account the institutional pressures faced by modern administrative tribunals as well as the risks inherent in such a practice. …", - "current_to": "2007-05-25", + "text": "The “secondary intersecting ground” is said by the appellant to be “a distinction between undocumented migrants with disabilities, who are adversely affected by the policy, and those without disabilities, who are similarly disqualified from coverage, but who do not have serious disabilities or related healthcare needs, therefore experiencing a differential effect.” Intersecting grounds can affect the quality of the alleged discrimination and influence the section 15 analysis: See, e.g., Denise Reaume, “Of Pigeonholes and Principles: A reconsideration of discrimination law”, (2002) 40 Osgoode Hall L.J. 113-144 at paragraphs 33-42 and Douglas Kropp, “Categorical Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject,” (1997) 23 Queen’s L.J. 201 at paragraph 8. As the appellant has failed to establish her primary distinction, immigration status, and since there are other obstacles to her section 15 claim, discussed below, I need not consider this further.\n\nTherefore, in my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-41", + "id": "fca-37227-35", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 85–86", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 102–104", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "However, the arrangements made for discussions within an agency with members who have heard a case must not be so coercive as to raise a reasonable apprehension that members’ ability to decide cases free from improper constraints has been undermined: Tremblay v. Québec (Commission des affaires sociales), [1992] 1 S.C.R. 952.\n\nEvidence that the Immigration and Refugee Board “monitors” members’ deviations from the standard order of questioning does not, in my opinion, create the kind of coercive environment which would make Guideline 7 an improper fetter on members’ exercise of their decision-making powers. On a voluntary basis, members complete, infrequently and inconsistently, a hearing information sheet asking them, among other things, to explain when and why they had not followed “standard practice” on the order of questioning. There was no evidence that any member had been threatened with a sanction for non-compliance. Given the Board’s legitimate interest in promoting consistency, I do not find it at all sinister that the Board does not attempt to monitor the frequency of members’ compliance with the “standard practice”.", - "current_to": "2007-05-25", + "text": "Parenthetically, I would note that if the appellant had prevailed on this point, subsection 15(2) of the Charter might become live. If the immigrants, refugees and others who do receive medical care under the Order in Council constitute a disadvantaged group embraced by the enumerated or analogous grounds, and if the Order in Council is aimed at ameliorating or remedying that group’s condition, the Order in Council would be a “law, program or activity” within the meaning of subsection 15(2). In such a case, the Order in Council would not be found to be discriminatory under subsection 15(1): Kapp, supra at paragraph 41; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950. - II -\n\nThe appellant has failed to establish that the Order in Council relies upon, perpetuates or promotes prejudice or stereotyping.\n\nThe appellant has been denied coverage because she did not enter as an applicant for permanent residence, is not a person under immigration jurisdiction, and is not a person for whom the immigration authorities feel responsible. In imposing these eligibility criteria, the Order in Council does not suggest that the appellant and others like her are less capable or less worthy of recognition or value as human beings. The Order in Council does not single out, stigmatize or expose the appellant and others like her to prejudice and stereotyping, nor does it perpetuate any pre-existing prejudice and stereotyping. Indeed, the Order in Council, with its eligibility criteria, denies medical coverage to the vast majority of us, and not just the appellant and others like her. The Order in Council treats the appellant – a non-citizen who has remained in Canada contrary to Canadian immigration law – in the same way as all Canadian citizens, rich or poor, healthy or sick. - III -", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-42", + "id": "fca-37227-36", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 87–89", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 105–106", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "Nor is it an infringement of members’ independence that they are expected to explain in their reasons why a case is exceptional and warrants a departure from the standard order of questioning. Such an expectation serves the interests of coherence and consistency in the Board’s decision-making in at least two ways. First, it helps to ensure that members do not arbitrarily ignore Guideline 7. Second, it is a way of developing criteria for determining if circumstances are “exceptional” for the purpose of paragraph 23 and of providing guidance to other members, and to the Bar, on the exercise of discretion to depart from the standrd order of questioning in future cases.\n\nIn my opinion, therefore, the evidence in the present case does not establish that a reasonable person would think that RPD members’ independence was unduly constrained by Guideline 7, particularly in view of: the terms of the Guideline; the evidence of members’ deviation from “standard practice”; and the need for the Board, the largest administrative agency in Canada, to attain an acceptable level of consistency at hearings, conducted mostly be single members.\n\nAdjudicative “independence” is not an all or nothing thing, but is a question of degree. The independence of judges, for example, is balanced against public accountability, through the Canadian Judicial Council, for misconduct. The independence of members of administrative agencies must be balanced against the institutional interest of the agency in the quality and consistency of the decisions, from which there are normally only limited rights of access to the courts, rendered by individual members in the agency’s name. (iii) Is Guideline 7 invalid because it is a rule of procedure and should therefore have been issued under IRPA, paragraph 161(1)(a)?", - "current_to": "2007-05-25", + "text": "In my view, the facts and the holding of the Supreme Court in Auton, supra are directly on point and confirm that the Order in Council does not infringe section 15 of the Charter. In Auton, the claimants sought an order that British Columbia’s medicare program should be extended to cover a particular treatment for autism. The denial of coverage was said to be discriminatory under section 15 of the Charter. The Supreme Court refused to order British Columbia to extend its medicare program to cover the treatment.\n\nAt paragraph 41, the Supreme Court held that “[i]t is not open to Parliament…to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment.” I note that the Order in Council does not do this. The Supreme Court then added (at paragraph 41): On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect…does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83, at para. 55; Hodge, supra, at para. 16.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-43", + "id": "fca-37227-37", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 90–91", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "para 107", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "On its face, the power granted by IRPA, paragraph 159(1)(h) to the Chairperson to issue guidelines in writing “to assist members in carrying out their duties” is broad enough to include a guideline issued in respect of the exercise of members’ discretion in procedural, evidential or substantive matters. Members’ “duties” include the conduct of hearings “as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”: IRPA, section 162. In my view, structuring members’ discretion over the order of questioning is within the subject-matter of the guidelines contemplated by section 159.\n\nIn any event, the Chairperson did not need an express grant of statutory authority to issue guidelines to members. Paragraph 159(1)(h) puts the question beyond dispute, establishes a duty to consult before a guideline is issued, and, perhaps, enhances their legitimacy.", - "current_to": "2007-05-25", + "text": "On the issue whether the benefit was conferred in a discriminatory manner, the Supreme Court stated (at paragraph 42): Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-44", + "id": "fca-37227-38", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "para 92", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 108–111", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "An express statutory power to issue guidelines was first conferred on the Chairperson of the Board in 1993, as a result of an amendment to the former Immigration Act by Bill C-86. Appearing before the Committee of the House examining the Bill, Mr Gordon Fairweather, the then Chairperson of the Board welcomed this addition to the Board’s powers: I’m also pleased that the minister has responded to the need for new tools for managing the board itself. In the board’s desire to ensure consistency of decision-making, we welcome the legislative provision allowing for guidelines…. The provision will reinforce my authority, after appropriate consultations, and the courts have been very specific about saying, no guidelines until you have consulted widely with the caring agencies, the immigration bar, and other non-governmental organizations. But the courts have given the green light for such provision provided we go through those consultations. This provision will reinforce my authority, or the chair’s authority – that is a little less pompous – after appropriate consultations to direct members toward preferred positions and therefore foster consistency in decisions. [Emphasis added] (Canada, House of Commons, Legislative Committee on Bill C-86, Minutes of Proceedings and Evidence, 34th Parl., 3d sess., Issue 5 (July 30, 1992) at 80)", - "current_to": "2007-05-25", + "text": "The exclusion of the appellant from the coverage provided by the Order in Council does not undercut its overall purpose. On the other hand, the exclusion of the appellant from the coverage provided by the Order in Council is consistent with its purpose. The Order in Council is designed to provide emergency care to legal entrants into Canada who are under immigration jurisdiction or for whom immigration authorities feel responsible. Extending these benefits to all foreign nationals in Canada, even those in Canada illegally, stretches the program well beyond its intended purpose. Excluding persons such as the appellant keeps the program within its purpose. In the words of Auton (at paragraph 43), the appellant’s exclusion from the Order in Council “cannot, without more, be viewed as an adverse distinction based on an enumerated ground”; rather, “it is an anticipated feature” of the Order in Council.\n\nSince the Order in Council does not confer benefits in a discriminatory manner, the general rule expressed by the Supreme Court in paragraph 41 of Auton prevails. The government was “under no obligation to create a particular benefit” in the Order in Council and was left “free to target the social programs it [wished] to fund as a matter of public policy.” - IV -\n\nFinally, I query whether the Order in Council, said by the appellant to be discriminatory, is the operative cause of the disadvantage the appellant is encountering. The observations I made in paragraphs 67-73 also apply to the appellant’s section 15 claim.\n\nTherefore, for all of the foregoing reasons, I conclude that the Order in Council does not infringe the appellant’s rights under section 15 of the Charter. G. Justification and remedy", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-45", + "id": "fca-37227-39", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 93–95", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 112–114", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the present appeal raises an important question about the relationship between the Chairperson’s powers to issue guidelines and rules. In particular, are these grants of legal authority cumulative so that, for the most part, the scope of each is to be determined independently of the other? Or, is the Chairperson’s power to issue guidelines implicitly limited by the power to make rules of procedure? If it is, then a change to the procedure of any Division of the Board may only be effected through a rule of procedure issued under paragraph 161(1)(a) which has been approved by Cabinet and subjected to Parliamentary scrutiny in accordance with subsection 161(2).\n\nThe argument in the present case is that Guideline 7 is a rule of procedure and, since it reforms the existing procedure of the RPD, should have been issued under paragraph 161(1)(a), received Cabinet approval and been laid before Parliament. The power of the Chairperson to issue guidelines may not be used to avoid the political accountability mechanisms applicable to statutory rules issued under subsection 161(1).\n\nFor this purpose, the fact that Guideline 7 permits RPD members to exercise their discretion in “exceptional circumstances” to deviate from “standard practice” in the order of questioning does not prevent it from being a rule of procedure: rules of procedure commonly confer discretion to be exercised in the light of particular facts.", - "current_to": "2007-05-25", + "text": "On the issue of justification under section 1 of the Charter – whether the Order in Council is a reasonable limit prescribed by law in a free and democratic society – the Federal Court held (at paragraph 94) that if the Order in Council were extended to prove medical coverage to persons illegally in Canada, such as the appellant, Canada would become a “health care safe haven.” The Federal Court mentioned this in the context of the state’s interest that forms part of the analysis of the principles of fundamental justice under section 7.\n\nIn any analysis of justification under section 1 of the Charter in this case, the interests of the state in defending its immigration laws would deserve weight. If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.\n\nIn this case, it is not necessary to comment on justification under section 1 any further. Nor is it necessary to comment on what constitutional remedy might be awarded under subsection 24(1) of the Charter. The appellant’s constitutional challenge fails for want of proof of rights breach. The Order in Council does not infringe sections 7 and 15 of the Charter. H. Concluding comments", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-46", + "id": "fca-37227-40", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2011 FCA 213", + "act_short": "Toussaint", + "act_name": "Toussaint v. Canada (Attorney General)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 96–98", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "marginal_note": "paras 115–117", + "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", "part": "Federal Court of Appeal", "division": "", - "text": "An analogous line of reasoning is found in the Ontario Court of Appeal’s decision in Ainsley, where it was said that the Ontario Securities Commission’s policy statement prescribing business practices of penny stock dealers which would satisfy the statutory public interest standard was invalid, because it was in substance and effect “a mandatory provision having the effect of law” (at 84). In my opinion, however, Ainsley should be applied to the present case with some caution.\n\nFirst, when Ainsley was decided, the Commission had no express statutory power to issue guidelines and no statutorily recognized role in the regulation-making process. In contrast, the Chairperson of the Board has a broad statutory power to issue guidelines and, subject to Cabinet approval, to make rules respecting a broad range of topics, including procedure.\n\nAdmittedly, the Board’s rules of procedure (as well, of course, as IRPA itself and regulations made under it by the Governor in Council) have a higher legal status than guidelines, in the sense that, if a guideline and a rule conflict, the rule prevails.", - "current_to": "2007-05-25", + "text": "Just before the release of these reasons, this Court released its judgment in Toussaint v. Canada (Citizenship and Immigration), 2011 FCA 146. It held that the Minister must consider the appellant’s request for a waiver of fees for her application for permanent residence in Canada.\n\nOn the evidence in this record, and given the reasons set out in paragraphs 35 and 45, above, a decision by the Minister to waive the fees and accept the appellant’s application will not entitle her to medical coverage under the Order in Council. However, depending upon the terms of legislation in Ontario, she may be entitled to health coverage or assistance from Ontario, now or at some point in the future. That will be for others to decide. I. Proposed disposition\n\nI would dismiss the appeal. In the circumstances, the Crown has asked that costs not be awarded against the appellant. Accordingly, I would not award costs. \"David Stratas\" J.A. “I agree Pierre Blais C.J.” “I agree M. Nadon J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2011-06-27", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" }, { - "id": "fca-35611-47", + "id": "fca-31447-1", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 99–101", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 1–4", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Second, the policy statement considered in Ainsley was directed at businesses regulated by the Commission and was designed to modify their practices by linking compliance with the policy to the Commission’s prosecutorial power to institute enforcement proceedings, which could result in the loss of a licence by businesses not operating in “the public interest”. Guideline 7, on the other hand, is directed at the practice of RPD members in the conduct of their proceedings. It does not impose de facto duties on members of the public or deprive them of an existing right. Guideline 7 lacks the kind of coercive threat, against either claimants or members, in the event of non-compliance, which was identified as important to the decision in Ainsley.\n\nThe Commission’s promulgation of detailed industry standards, other than through enforcement proceedings against individuals, when it lacked any legislative power, raised rule of law concerns. In my opinion, the same cannot plausibly be said of the Chairperson’s decision to introduce a standard order of questioning through the statutory power to issue guidelines, rather than his power to issue rules.\n\nThird, while the Board can only issue formal statutory rules of procedure with Cabinet approval, tribunals often do not require Cabinet approval of their rules. In Ontario, for example, the procedural rules of tribunals to which the province’s general code of administrative procedure applies are not subject to Cabinet approval: Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22, subsection 25.1(1). Hence, it cannot be said to be a principle of our system of law and government that administrative tribunals’ rules of procedure require political approval.", - "current_to": "2007-05-25", + "text": "On February 18, 1999, Mizanur Rahaman, a 26 year-old citizen of Bangladesh, was refused refugee status by the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board also concluded that the claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.\n\nThe principal effects of a \"no credible basis\" finding are that the unsuccessful claimant for refugee status has no right to apply to remain as a member of the Post-Determination Refugee Claimants in Canada (\"PDRCC\") class and is liable to be removed from Canada seven days after the removal order is effective.\n\nThis is an appeal by Mr. Rahaman from a decision dated November 2, 2001 dismissing an application for judicial review of the Board's rejection of his refugee claim and of the \"no credible basis\" finding. The principal issue to be decided is contained in the question that the Application Judge, Teitelbaum J., certified under subsection 83(1): Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1 (9.1) of the Immigration Act ? Counsel for Mr. Rahaman has limited the appeal to the Board's \"no credible basis\" finding; the dismissal of the application to set aside the Board's rejection of the refugee claim itself is not being appealed. B. THE BOARD'S DECISION\n\nIn his submissions to the Board, Mr. Rahaman claimed that, as a result of his membership of and activities in the youth wing (\"JJD\") of the Bangladesh National Party (\"BNP\"), he had a well-founded fear of persecution in Bangladesh on account of his political opinions.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-35611-48", + "id": "fca-31447-2", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 102–105", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 5", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Fourth, while Guideline 7 changed the way in which the Board conducts most of its hearings, it represents, in my view, more of a filling in of detail in the procedural model established by IRPA and the Refugee Protection Division Rules, than “fundamental procedural change” or “sweeping procedural reform”, to use the characterization in the memorandum of the intervener, the Canadian Council for Refugees.\n\nFor example, rule 16(e) includes the questioning of witnesses in the RPO’s duties, but is silent on the precise point in the hearing when the questioning is to occur. Similarly, while rule 25 deals with the intervention of the Minister, it does not specify when the Minister will lead evidence and make submissions. Rule 38 permits a party to call witnesses, but does not say when they will testify.\n\nFifth, the differences in the legal characteristics of statutory rules of procedure and Guideline 7 should not be overstated. Rules of procedure commonly permit those to whom they are directed to depart from them in the interests of justice and efficiency. Thus, rule 69 of the Refugee Protection Division Rules permits a member to change a requirement of a rule or excuse a person from it, and to extend or shorten a time period. Failure to comply with a requirement of the Rules does not make a proceeding invalid: rule 70.\n\nFinally, as I have already indicated, the Chairperson’s power to issue guidelines extends, on its face, to matters of procedure. Its exercise is not made expressly subject to paragraph 161(1)(a), although a guideline issued under paragraph 159(1)(h) which is inconsistent with a formal rule of procedure issued under paragraph 161(1)(a) will be invalid.", - "current_to": "2007-05-25", + "text": "More particularly, he alleged that, when participating in protest marches or election campaigns between 1990 and 1996, he had been beaten on several occasions by supporters of the Awami League and of the Jatiya Party, political rivals of the BNP. Awami League supporters, he said, were also responsible for bombing the office of the JJD in the appellant's electoral district and for vandalising a kiosk from which he was selling watches. Further, Mr. Rahaman stated that the police had provided little or nothing by way of protection against these attacks on him and had demanded bribes before being prepared to take any action. Having learned that his name was on a police list of suspected terrorists, and fearing for his life, Mr. Rahaman fled to Canada to claim asylum as a refugee.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-35611-49", + "id": "fca-31447-3", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 106–109", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 6–7", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "On the basis of the foregoing analysis, I conclude that, on procedural issues, the Chairperson’s guideline-issuing and rule-making powers overlap. That the subject of a guideline could have been enacted as a rule of procedure issued under paragraph 161(1)(a) will not normally invalidate it, provided that it does not unlawfully fetter members’ exercise of their adjudicative discretion, which, for reasons already given, I have concluded that it does not.\n\nIn my opinion, the Chairperson may choose through which legislative instrument to introduce a change to the procedures of any of the three Divisions of the Board. Parliament should not be taken to have implicitly imposed a rigidity on the administrative scheme by preventing the Chairperson from issuing a guideline to introduce procedural change or clarification.\n\nI do not say that the Chairperson’s discretion to choose between a guideline or a rule is beyond judicial review. However, it was not unreasonable for the Chairperson to choose to implement the standard order of questioning through the more flexible legislative instrument, the guideline, rather than through a formal rule of procedure.\n\nFirst, Guideline 7 is not a comprehensive code of procedure nor, when considered in the context of the refugee determination process as a whole, is it inconsistent with the existing procedural model for RPD hearings. Second, the procedural innovation of standard order questioning may well require modification in the light of cumulated experience. Fine-tuning and adjustments of this kind are more readily accomplished through a guideline than a formal rule. Parliament should not be taken to have intended the Chairperson to obtain Cabinet approval for such changes. E. CONCLUSIONS", - "current_to": "2007-05-25", + "text": "The Board was concerned by inconsistencies and implausibilities in Mr. Rahaman's testimony which he could not explain satisfactorily. For instance, the Board found it odd that Mr. Rahaman alleged that he was attacked and denied police protection at a time when the party to which he was affiliated, the BNP, was in power. Further, he could provide the Board with no adequate explanation of how he came to know that he was on a list of suspected terrorists or why, in a letter submitted in evidence to the Board, the local JJD branch of which Mr. Rahaman was an executive member made no mention of problems that its members had had with the police. Moreover, when faced by the Board with documentary evidence of violent clashes between JJD supporters and their rivals, the appellant retracted his testimony denying that such clashes had occurred. The Board also found that the credibility of Mr. Rahaman's evidence was further undermined by the fact that he was apparently willing to remain in Bangladesh during the years of his alleged persecution, when the party for which he worked was in power, but decided to leave when it was defeated, on the ground that his opponents would then seek revenge against him.\n\nHaving considered all the evidence and the submissions, the Board concluded that the claimant was not a Convention refugee. It summarized its conclusion as follows: The panel found a problem with the claimant's general credibility and particularly with his level of implication as he tried to demonstrate in his PIF [scil. Personal Information Form] and testimony. Without further reasons the Board also found that Mr. Rahaman's refugee claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act. C. THE TRIAL DIVISION'S DECISION", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-35611-50", + "id": "fca-31447-4", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 110–113", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 8–9", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "For these reasons, I would allow the Minister’s appeal, dismiss Mr Thamotharem’s cross-appeal, set aside the order of the Federal Court, and dismiss the application for judicial review. I would answer the first two certified questions as follows: 1. Does the implementation of paragraphs 19 and 23 of the Chairperson’s Guideline 7 violate principles of natural justice by unduly interfering with claimants’ right to be heard? No 2. Has the implementation of Guideline 7 led to fettering of Board Members’ discretion? No.\n\nSince I would dismiss the application for judicial review, the third question does not arise and need not be answered. “John M. Evans” J.A. “I agree. Robert Décary J.A.” SHARLOW J.A. (Concurring)\n\nI agree with my colleague Justice Evans that this appeal should be allowed, but I reach that conclusion by a different route.\n\nAs Justice Evans explains, IRPA gives the Chairperson two separate powers. One is the power in paragraph 159(1)(h) to issue guidelines in writing to assist Members in carrying out their duties. The other is the power in paragraph 161(1)(a) to make rules respecting the activities, practice and procedure of the Board, subject to the approval of the Governor in Council. Both powers are to be exercised in consultation with the Deputy Chairpersons and the Director General of the Immigration Division. In my view, these two powers are different in substantive and functional terms, and are not interchangeable at the will of the Chairperson.", - "current_to": "2007-05-25", + "text": "On Mr. Rahaman's application for judicial review to have the Board's decision set aside, submissions were made on his behalf in an attempt to undermine the Board's finding that his evidence was not credible. However, after carefully considering the Board's findings in light of the oral and documentary evidence before it, and of the submissions made to him, Teitelbaum J. concluded that it was not unreasonable for the Board to find that the applicant's claim was not credible. He specifically noted the deference afforded by reviewing courts to credibility findings made by the triers of fact, and that documentary evidence before the Board contradicted in significant respects Mr. Rahaman's testimony.\n\nTeitelbaum J. also found that the Board had based its \"no credible basis\" finding primarily on Mr. Rahaman's lack of credibility. In addition, it had relied on the absence of documentary evidence to support his claim to be at risk of persecution and on the fact that some of the documentary evidence contradicted his account of the situation in Bangladesh at the relevant time. D. LEGISLATIVE FRAMEWORK", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-35611-51", + "id": "fca-31447-5", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 114–116", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 10", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The subject of Guideline 7 is the order of proceeding in refugee hearings. That is a matter respecting the activities, practice and procedure of the Board, analogous to the subject matter of the procedural rules of courts. In my view, the imposition of a standard practice for refugee determination hearings should have been the subject of a rule of procedure, not a guideline.\n\nI make no comment on the wisdom of the Chairperson’s determination that the standard practice in refugee hearings, barring exceptional circumstances, should be for the RPO or the Member to start questioning the refugee claimant. That is a determination that the Chairperson was entitled to make. However, to put that determination into practice while respecting the limits of the statutory authority of the Chairperson, the Chairperson should have drafted a rule to that effect, in consultation with the Deputy Chairpersons and the Director General of the Immigration Division, and sought the approval of the Governor in Council.\n\nJustice Evans notes that some commentators have suggested that the implementation of a rule under paragraph 161(1)(a) is more onerous in administrative and bureaucratic terms than the implementation of a guideline under paragraph 159(1)(h). That appears to me to be an unduly negative characterization of the legislated requirement for the approval of the Governor in Council, Parliament’s chosen mechanism of oversight for the Chairperson’s rule making power under paragraph 161(1)(a). It is also belied by the facts of this case, which indicates that the development of Guideline 7 took approximately four years. I doubt that a rule with the same content would necessarily have taken longer than that.", - "current_to": "2007-05-25", + "text": "The following provisions of the Immigration Act are relevant to this appeal. Immigration Act, R.S.C. 1985, c. I-2 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed ... (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division, (i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of, ... (f) in any case where a person has been determined pursuant to subsection 69.1(9.1) not to have a credible basis for the claim to be a Convention refugee, until seven days have elapsed from the time the order became effective, unless the person agrees that the removal order may be executed before the expiration of that seven day period 69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and 49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à l'exécution d'une mesure de renvoi_: ...", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-35611-52", + "id": "fca-31447-6", "doc_type": "caselaw", - "act_code": "2007 FCA 198", - "act_short": "Thamotharem", - "act_name": "Canada (Citizenship and Immigration) v. Thamotharem", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Canada (Citizenship and Immigration) v. Thamotharem, 2007 FCA 198", - "marginal_note": "paras 117–120", - "heading": "Refugee Protection Division hearing procedure; order of questioning and fettering of discretion by guidelines", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 10", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The more important question in this case is whether the Chairperson’s erroneous decision to implement a guideline rather than a rule to establish a standard practice for refugee hearings provides a sufficient basis in itself for setting aside a negative refugee determination made by a Member who requires a refugee claimant to submit to questions from the RPO or the Member before presenting his or her own case.\n\nI agree with Justice Evans that the standard procedure outlined in Guideline 7 is not in itself procedurally unfair and that Guideline 7, properly understood, does not unlawfully fetter the discretion of Members. In my view, despite Guideline 7, each Member continues to have the unfettered discretion to adopt any order of procedure required by the exigencies of each claim to which the Member is assigned.\n\nIt may be the case that a particular Member may conclude incorrectly that Guideline 7 deprives the Member of the discretion to permit a refugee claimant to present his or her case before submitting to questioning from the RPO or the Member. If so, it is arguable that a negative refugee determination by that Member is subject to being set aside if (1) the Member refused the request of a refugee claimant to proceed first and required the refugee claimant to submit to questioning by the RPO or the Member before presenting his or her case, and (2) it is established that, but for Guideline 7, the Member would have permitted the refugee claimant to present his or her case first. In the case of Mr. Thamotharem, those conditions have not been met.\n\nFor these reasons, I would dispose of this appeal as proposed by Justice Evans, and I would answer the certified questions as he proposes. “K. Sharlow” J.A. FEDERAL COURT OF APPEAL", - "current_to": "2007-05-25", + "text": "c) sous réserve des alinéas d) et f), dans le cas d'une personne qui s'est vu refuser le statut de réfugié au sens de la Convention par la section du statut ou don't l'appel a été rejeté par la section d'appel_: (i) si l'intéressé présente une demande d'autorisation relative à la présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ou notifie par écrit à un agent d'immigration son intention de le faire, jusqu'au prononcé du jugement sur la demande d'autorisation ou la demande de contrôle judiciaire, ou l'expiration du délai normal de demande d'autorisation, selon le cas, ... f) dans le cas où la section du statut a décidé conformément au paragraphe 69.1(9.1) que la revendication n'a pas un minimum de fondement, pendant sept jours à compter du moment où la mesure est devenue exécutoire, à moins que l'intéressé ne consente à l'exécution avant l'expiration de cette période. 69.1(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35611/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-1", + "id": "fca-31447-7", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 1–6", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 11", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The applicant is a citizen of Grenada. In 1999, she entered Canada as a visitor. She never left. She has stayed in Canada, contrary to Canada’s immigration laws.\n\nFor her first seven years in Canada, the appellant worked and earned enough to sustain herself. However, in 2006, her health began to deteriorate. She could no longer work.\n\nSince 2006, the appellant has received some medical care without having to pay for it, but much more medical care is required. Her medical condition has become most serious.\n\nIn September 2008, still in Canada contrary to Canada’s immigration laws, the appellant took steps to try to regularize her status in Canada. She applied to Citizenship and Immigration Canada for permanent residence status. A few months later, she applied to Citizenship and Immigration Canada for a temporary residence permit so she could become eligible for health coverage under the Ontario Health Insurance Program. In both applications, she asked for a waiver of the fees. The waivers were refused, the fees remained unpaid, and so the applications were never considered.\n\nIn May 2009, the appellant applied to Citizenship and Immigration Canada for medical coverage under its Interim Federal Health Program. As we shall see, this Program is actually embodied in one of Canada’s immigration laws, Order in Council OIC 1957-11/848. Under this Order in Council, Citizenship and Immigration Canada covers the cost of emergency medical care for indigent persons that it has legally admitted to Canada.\n\nA Director with Citizenship and Immigration Canada found that the appellant was ineligible to receive medical coverage and rejected her application.", - "current_to": "2011-06-27", + "text": "The relevant provisions of the Regulations respecting the PDRCC class follow. Immigration Regulations, 1978, SOR/78-172 2.(1) \"member of the post- determination refugee claimants in Canada class\" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant ... (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, ... (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; 2.(1) « demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada : a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas : ... (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, ...", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-2", + "id": "fca-31447-8", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 7–11", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 11–13", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant brought an application for judicial review to the Federal Court, submitting that she was eligible for medical coverage. In the alternative, she submitted that her exclusion from medical coverage infringed her rights under sections 7 and 15 of the Charter. She requested the Federal Court to “read” the Order in Council as including her – in effect, to make this law compliant with sections 7 and 15 of the Charter by extending its terms to provide her with medical coverage.\n\nIf the Federal Court accepted the appellant’s request, the curiosity of some might be piqued: even though the appellant has disregarded Canada’s immigration laws for the better part of a decade, she would be able to take one of Canada’s immigration laws (the Order in Council), get a court to include her by extending the scope of that law, and then benefit from that extension while remaining in Canada contrary to Canada’s immigration laws.\n\nBut the Federal Court (per Justice Zinn) did not accept the appellant’s request to extend the scope of the Order in Council. It rejected her submissions and dismissed the application for judicial review: 2010 FC 810 (main decision) and 2010 FC 926 (decision on motion for reconsideration).\n\nThe appellant appeals to this Court, making submissions substantially similar to those that were made in the Federal Court.\n\nI also reject the appellant’s submissions and would dismiss the appeal. A. The Order in Council", - "current_to": "2011-06-27", + "text": "c) don't le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé.\n\nSubsection 11.4(1) of the Regulations also provides that, subject to certain limitations, persons found to be members of the PDRCC class, and their dependants, are to be granted permanent residence status in Canada. E. ANALYSIS\n\nCounsel for the appellant has argued that in the past this Court has interpreted too broadly the \"no credible basis\" provision in subsection 69.1(9.1). She has invited us to reconsider settled case law and to adopt a narrower interpretation which, she contends, would be more consistent with the scheme of the Act and would bring Canada into line with international norms. More precisely, it is submitted that a person's refugee claim is not supported by \"no credible or trustworthy evidence\" simply because the Board finds that the claimant is not a credible witness and hence concludes that there is no evidence linking the claimant to the alleged persecution on which the claim is based.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-3", + "id": "fca-31447-9", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 12–13", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 14–15", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Order in Council OIC 1957-11/848, passed on June 20, 1957, provides as follows: The Board recommends that Order in Council P.C. 4/3263 of June 6, 1952, be revoked, and that the Department of National Health and Welfare be authorized to pay the costs of medical and dental care, hospitalization, and any expenses incidental thereto, on behalf of: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment, and (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer, in cases where the immigrant or such a person lacks the financial resources to pay these expenses, chargeable to funds provided annually by Parliament for the Immigration Medical Services of the Department National Health and Welfare. B. The Director’s decision\n\nThe decision-maker on the appellant’s application to Citizenship and Immigration Canada for medical coverage was the Director, Program Management and Control, Health Management Branch.", - "current_to": "2011-06-27", + "text": "The original statutory function of the \"no credible basis\" test was to determine whether a refugee claim could be eliminated at the preliminary stage of a two-stage determination process: subsection 46.01(6), added by Immigration Act, R.S.C. 1985 (4th Supp.), c. 28, s. 14. This process was designed to enable the Board to deal expeditiously with the large numbers of unfounded refugee claims that were anticipated.\n\nHowever, since \"no credible basis\" established a threshold so low that most claimants were able to cross it, the process proved cumbersome, and did not assist the Board to handle its case load in an efficient and expeditious manner. Accordingly, it was abandoned in February 1993 when subsection 46.01(6), was repealed by R.S.C. 1992, c. 49. As a result, inland refugee claimants no longer had to prove that their claims had a credible basis before gaining access to a full determination by the Board. The amendments that came into effect in 1993 also added the present subsection 69.1(9.1), thereby conferring on the \"no credible basis\" test a new function in the statutory scheme, namely to restrict the post-determination rights of unsuccessful claimants whose claims were found to be supported by no credible evidence.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-4", + "id": "fca-31447-10", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 14–16", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 16", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "As mentioned above, the Director denied the appellant medical coverage. The Director’s decision is as follows: Health care services are provided by the Provinces and Territories. As such, access or denial to health care rests with those Provincial and Territorial authorities, in this case the Province of Ontario. The Interim Federal Health Program is an interim measure to provide emergency and essential health care coverage to eligible individuals who do not qualify for private or public health coverage and who demonstrate financial need. IFHP services aim to serve individuals in the following four groups of recipients: ● Refugee claimants; ● Resettled Refugees; ● Persons detained under the Immigration and Refugee Protection Act (IRPA); and, ● Victims of Trafficking in Persons (VTIPs). As you have not provided any information to demonstrate that your client falls into any of the above-mentioned categories, I regret to inform you that your request for IFHP coverage cannot be approved. Please be advised that your client has no active immigration application with Citizenship and Immigration Canada (CIC). C. The standard of review applicable to the Director’s decision\n\nAs mentioned above, the appellant applied to the Federal Court for judicial review of the Director’s decision.\n\nThe Federal Court did not explicitly select a standard of review for its consideration of the Director’s decision. However, it did find, in effect on a correctness standard, that the appellant did not qualify for medical coverage.", - "current_to": "2011-06-27", + "text": "Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) contains the most authoritative exposition of the \"no credible basis\" test when it performed the function of screening out claims at the preliminary stage of the determination process. Writing for the Court, MacGuigan J.A. concluded (at page 244) that Parliament had intended subsection 46.01(6) to screen out more than clearly \"bogus claims\": The concept of \"credible evidence\" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to \"country reports\" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-5", + "id": "fca-31447-11", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", "marginal_note": "paras 17–18", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The first step in determining the standard of review is to appreciate the nature of the decision in issue. As mentioned at the outset, the Interim Federal Health Program mentioned by the Director is embodied in an Order in Council (P.C. 157-11/848) and the decision-maker is a delegate of the Minister of Citizenship and Immigration Canada. In effect, we are reviewing the legal interpretation and application of an Order in Council by a delegate of the Minister.\n\nThe Supreme Court has told us that the standard of review will “usually” or “normally” be reasonableness where “a tribunal” is interpreting its “own statute” or “statutes closely connected to its function, with which it will have particular familiarity”: 2008 SCC 9 at paragraph 54, [2008] 1 S.C.R. 190; Celgene Corp. v. Canada (A.G.), 2011 SCC 1 at paragraph 34, 327 D.L.R. (4th) 513; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paragraph 26, 328 D.L.R. (4th) 1.", - "current_to": "2011-06-27", + "text": "Subsequently, the phrase \"no credible basis\" as it appears in subsection 69.1(9.1) has been interpreted in accordance with Sheikh, supra. Thus, in Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 197, at paragraph 12 (F.C.A.), Linden J.A. cited Sheikh, supra, for the proposition that, \"while credible basis and credibility are not identical, they are clearly connected\". At the very least, Mathiyabaranam, supra, is an implicit endorsement of the applicability of Sheikh, supra, in the context of subsection 69.1(9.1).\n\nJudges of the Trial Division have expressly held that Sheikh, supra, is the applicable approach to the words \"no credible basis\" in subsection 69.1(9.1): see, for example, Hernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 607 (T.D.); Nizeyimana v. Canada (Minister of Citizenship and Immigration), 2001 FCT 259; Geng v. Canada (Minister of Citizenship and Immigration), 2001 FCT 275.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-6", + "id": "fca-31447-12", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 19–20", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "I am inclined to find that the Director is subject to this “normal” or “usual” position of deference to his decision-making. But there exists considerable uncertainty on this, arising from Dunsmuir itself, previous case law, and the unusual circumstances of this case: (a) We are dealing with a Ministerial delegate, not a “tribunal” in any formal sense. In Dunsmuir the Supreme Court used the word “tribunal” on this point. In my view, although it is not perfectly clear, in Dunsmuir the Supreme Court did not intend to restrict this position of deference to interpretations by formal tribunals. Throughout its discussion of the standard of review, the Supreme Court used the terms “tribunal,” “decision maker,” “exercises of public authority,” “administrative bodies,” “adjudicative tribunal,” “adjudicative bodies,” “administrative tribunal,” and “administrative actors”: Dunsmuir, supra at paragraphs 28-29, 31, 33, 41, 47-50, 52, 54-56, and 59. It seems to have used the terms interchangeably and, collectively, they are wide enough to embrace a Ministerial delegate such as the Director. (b) In a relatively recent decision, albeit before Dunsmuir, the Supreme Court did not defer to the interpretation of a Ministerial delegate who was interpreting a statute closely related to his function: Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706, (a visa officer making an assessment under subparagraph 19(1)(a)(ii) of the Immigration Act, R.S.C. 1985, c. I‑2); see also Canada (Minister of Citizenship and Immigration) v. Patel, 2011 FCA 187 and cases cited at paragraph 27 of Patel.", - "current_to": "2011-06-27", + "text": "Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a \"no credible basis\" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181, on which counsel for the appellant placed considerable weight. In this case (supra, at paragraph 19), Denault J. summarised his understanding of the law as follows: In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a \"no credible basis\" finding, the \"independent and credible documentary evidence\" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim.\n\nThe case law to date would therefore seem to be solidly against the position taken on behalf of Mr. Rahaman in this appeal, namely that the Board may not make a \"no credible basis\" finding if a claim is based on a Convention ground and there is evidence that persecution of the kind alleged has in fact occurred in the country in question.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-7", + "id": "fca-31447-13", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 21–22", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "This is certainly consistent with how we today approach decisions involving some other Ministerial delegates. For example, in the income tax context, income tax assessors – Ministerial delegates – are very familiar with the Income Tax Act. One might think that the normal administrative law standard of review analysis would apply to appeals of these administrators, with deference to their legal interpretations being the result: see, e.g., Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748 and Dunsmuir, supra at paragraph 54. But it does not. The Tax Court of Canada, sitting in appeal on income tax assessments, and this Court do not defer at all to the statutory interpretations of the Minister’s delegate. (c) The Supreme Court spoke in Dunsmuir of deference to interpretations of certain types of “statutes.” Did it mean to restrict this principle to “statutes”? There would appear to be no principled basis to do so. Deference probably also applies to interpretations of other types of laws, such as the Order in Council in this case. (d) The Director’s title seems to suggest that he administers programs such as this, and so he could be considered to be interpreting what Dunsmuir described as a law “closely connected with [his] function,” warranting our deference. But there is no evidence in the record on this one way or the other, nor would one expect there to be such evidence given the narrow nature of a record on judicial review.", - "current_to": "2011-06-27", + "text": "Nonetheless, counsel submits that we should reconsider the existing jurisprudence on subsection 69.1(9.1) because it is not consistent with Parliament's intention in enacting it. Instead, she argues, a claim should only be found to lack a credible basis if it would be characterised as \"manifestly unfounded\", the test used in international instruments for identifying both claims that may be rejected through a more summary determination procedure than that normally applicable to refugee claims and claimants whose post-determination rights may be truncated in order to expedite their removal. Counsel puts her argument in two ways. (a) The statutory coherence argument\n\nCounsel argues that, to apply the interpretation of the \"no credible basis\" test in Sheikh, supra, to subsection 69.1(9.1) subverts the intention of Parliament by converting into the normal what was intended to be exceptional. The argument is that the statutory scheme established by the Immigration Act contemplates that, in the normal course, an unsuccessful refugee claimant will be entitled to apply to be recognized as a member of the PDRCC class, and to remain in Canada until the final determination of that application and the disposition of any legal proceedings arising either from that application or from the rejection of the refugee claim. A finding of \"no credible basis\", which deprives an unsuccessful claimant of these rights, is intended only for the unusual case where the claim is so devoid of merit as to constitute an abuse of the refugee determination system.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-8", + "id": "fca-31447-14", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 19", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 23–24", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", - "division": "", - "text": "(e) The position of deference for administrative interpretations of statutes is said in Dunsmuir to apply only “usually” or “normally.” Does this qualification refer to the situations mentioned in Dunsmuir where the correctness standard applies? Perhaps not, as these situations largely do not involve issues of statutory interpretation. Does this qualification refer to some as yet unidentified situations? We simply do not know. (f) In this particular case, as we shall see, the Director did not engage in any actual interpretation of the Order in Council. Rather, he simply interpreted and applied an administrative policy made under that Order in Council. Does this mean that the Director’s decision is subject to correctness review? I am not so sure. There are statements in Dunsmuir that suggest that the Director’s failure to interpret the Order in Council may not matter. In two places in Dunsmuir, the Supreme Court suggests that in assessing the substance of decision-making under the reasonableness standard we are to examine the outcome reached by the decision-maker and not necessarily the plausibility of the reasons actually given. At paragraph 47, we are directed to ask ourselves “whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law” and at paragraph 48 we are told that an administrative decision can be supported on the basis of reasons that “could [have] be[en] offered” [emphasis added]. (g) I am not alone in my doubts on this issue. Recently, this Court discussed Dunsmuir and the standard of review that should apply to the Governor in Council’s interpretation of a statute. It found the law in this area to be unclear: Global Wireless Management Corp. v.", - "current_to": "2011-06-27", + "division": "", + "text": "However, it is argued, most refugee claims fail because the Board does not believe the claimant's testimony. Therefore, if a \"no credible basis\" finding can be made when the Board does not find the claimant credible, most unsuccessful refugee claimants will not have the right either to make a PDRCC claim, or to remain in Canada pending the final disposition of an application for judicial review of the Board's dismissal of their refugee claim. The result is that most unsuccessful claimants will not have the benefit of the rights that Parliament intended. Despite the absence of evidence in the record before us on the percentage of refugee claims that are rejected because the claimant is not found to be credible, I am prepared to assume for the purpose of this appeal that they constitute a significant percentage of all unsuccessful refugee claims.\n\nI do not, of course, take issue with that regularly approved principle of statutory interpretation formulated by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths Ltd., 1983), at page 87, that \"... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.\" Nonetheless, in my opinion, counsel's argument cannot succeed.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-9", + "id": "fca-31447-15", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 19–25", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 25–27", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Public Mobile Inc., 2011 FCA 194 at paragraph 35.\n\nFortunately, on the facts of this case, I need not decide whether the standard of review is correctness or the deferential standard of reasonableness. Regardless of the standard of review, the Director’s decision passes muster: as the Director found, the appellant was not entitled to receive medical coverage in this case. D. The Federal Court’s conclusions concerning the decision of the Director\n\nThe Federal Court found that the Director fettered his discretion by following a departmental guideline instead of interpreting the actual wording of the Order in Council. In its view, the Director was entitled to read and consider the departmental guideline but should have interpreted the actual wording of the Order in Council, the law that governed his discretion.\n\nHowever, the Federal Court held that this was immaterial: if the Director had regard to the Order in Council, he would have had to rule that the appellant was not entitled to receive coverage. Therefore, the Director’s decision could stand.\n\nFor the purposes of this appeal, the Federal Court’s bottom-line conclusion was that the appellant was ineligible under the Order in Council to receive medical coverage. E. Assessment of the Federal Court’s decision that the appellant was ineligible to receive medical coverage under the Order in Council (1) Introduction and overview\n\nIn my view, the Federal Court’s bottom line conclusion is correct: the appellant was ineligible to receive medical coverage under the Order in Council.\n\nIn reaching its conclusion, the Federal Court relied upon the plain meaning of the words in the Order in Council. It examined the history behind the Order in Council in order to see if there was some special significance behind some of the wording used in it.", - "current_to": "2011-06-27", + "text": "First, a word or phrase is presumed to have the same meaning when used more than once in the same statute: R. Sullivan ed., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths Ltd., 1994), at pages 163-64. This presumption is particularly persuasive when, as here, the phrase is part of a longer text, and both phrase and text appear in different provisions of the statute. In my view, the presumption is not significantly weakened by the fact that the phrase \"no credible basis\" did not appear in provisions of the Immigration Act that were in force at the same time. As I have already noted, the former subsection 46.01(6) was repealed at the same time that subsection 69.1(9.1) was added to the Act.\n\nSecond, I cannot ignore the fact that in Mathiyabaranam, supra, this Court treated the interpretation in Sheikh, supra, of \"no credible basis\" in subsection 46.01(6) as equally applicable to the same words in subsection 69.1(9.1), a view consistently taken in the Trial Division. Only in exceptional circumstances should a well established interpretation of a statutory provision be abandoned.\n\nThird, I do not accept counsel's submission that Sheikh, supra, equates \"no credible basis\" with a finding that the claimant's testimony is not credible. In particular, it is expressly stated in that decision that the Board is to have regard to all the evidence before it: the claimant's oral submissions and any documentary evidence or other oral testimony. See, for example, Nizeyimana, supra; Barua v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1744 (T.D.); Tingombay v. Canada (Minister of Citizenship and Immigration), 2001 FCT 752.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-10", + "id": "fca-31447-16", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 26", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 28–30", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court also placed particular emphasis upon a rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see the Federal Court’s reasons at paragraph 44. I agree with the Federal Court’s view that the Minister’s rationale was an important clue as to the intended scope of the Order in Council. It was right to place particular emphasis on it.", - "current_to": "2011-06-27", + "text": "Moreover, the wording of subsection 69.1(9.1) provides that a \"no credible basis\" finding may only be made if there was no credible or trustworthy evidence on which the Board member could have upheld the claim. In other words, the Board member may not make a \"no credible basis\" finding if there is credible or trustworthy evidence before it that is capable of enabling the Board to uphold the claim, even if, taking the evidence as a whole, the Board decides that the claim is not established.\n\nHowever, as MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant-specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim.\n\nOn the other hand, the existence of some credible or trustworthy evidence will not preclude a \"no credible basis\" finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case at bar, Teitelbaum J. upheld the \"no credible basis\" finding, even though he concluded that, contrary to the Board's finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board's rejection of his claim.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-11", + "id": "fca-31447-17", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 27", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 31–32", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The Minister’s rationale was as follows: THAT on occasion persons are referred for medical and hospital treatment during the time they are thought to be under the jurisdiction of the Immigration authorities but before it is possible to satisfactorily determine their status as immigrants as defined in the Immigration Act, and because of the urgent nature of the disabling condition, treatment cannot be prudently postponed until their exact status has been completely established. THAT in other instances persons who other than immigrants as defined who are temporarily under the jurisdiction of the Immigration authorities become urgently in need of medical care or hospital treatment, and at the time it is not humanely possible to defer medical action until the determination of who, if any third party, is financially responsible for the cost of such action; THAT it is considered to be in the public interest and necessary for the maintenance of good public relations between the two Federal Departments concerned and the large number of individuals, societies and other agencies who work closely in association with these Departments during the ordinary course of Immigration operations, that the existing authority which is restrictive by reason of the term “immigrant” and also by reason of the conditions of “time” which are applied, be changed to permit the Department of National Health and Welfare to render the necessary medical assistance in these instances; THAT both Departments undertake to administer this authority in such a way as to confine its use to those occasions only when circumstances render it the best course of action in the public interest, and only when humane interests more or less obligate the Departments to accept the responsibility;…", - "current_to": "2011-06-27", + "text": "Fourth, while the adverse consequences of a \"no credible basis\" finding under subsection 69.1(9.1) are undoubtedly significant for the person concerned, they need to be considered in context. Thus, although those against whom a \"no credible basis\" finding is made do not have a statutory right to an automatic stay of their removal while they exhaust their legal and administrative recourse, if they seek leave to apply for judicial review of the Board's dismissal of their refugee claim, they may ask the Court for a stay pending the Court's disposition of their application.\n\nFurther, although not permitted to apply for exemption from removal as a member of the PDRCC class, an unsuccessful refugee claimant whose claim has been found to have no credible basis may apply to remain in Canada on humanitarian and compassionate grounds in the exercise of the Minister's discretion under subsection 114(2). The existence of an objectively identifiable risk facing the applicant, if returned, is a recognized ground for a positive exercise of discretion: Immigration Canada, Immigration Manual: Inland Processing. looseleaf (Immigration Information Centre; 1991), chapter 5, section 8.8. However, a removal will generally not be stayed pending the completion of a subsection 114(2) application, although a person whose application is based on a risk of persecution in his or her country of origin will normally not be removed if the claimant is found likely to be at serious risk.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-12", + "id": "fca-31447-18", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 28–32", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 33–34", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The Federal Court’s overall conclusion was as follows (at paragraph 51): Properly interpreted, Order-in-Council P.C. 157-11/848 does not apply to the applicant and she is not eligible for [Program] coverage. The applicant is not an “immigrant” in the sense that she is applying for permanent residence in Canada. The applicant is not temporarily under the jurisdiction of immigration authorities. Nor does the applicant fall into one of the narrow, well-defined categories for which immigration authorities feel responsible.\n\nI agree with the general thrust of the conclusion in this passage. But I wish to amplify and clarify it somewhat. This is needed because parties might interpret this passage in future cases to ascribe to the Order in Council a scope of medical coverage greater than is warranted by its terms.\n\nAs is seen from the text of the Order in Council quoted above at paragraph 12, the Order in Council contains two paragraphs, (a) and (b). Each of these sets out certain eligibility criteria. In addition to satisfying the eligibility criteria in paragraphs (a) or (b), a claimant must also “[lack] the financial resources to pay [the medical] expenses.” (2) Paragraph (a) of the Order in Council\n\nParagraph (a) of the Order in Council provides as follows: (a) an immigrant, after being admitted at a port of entry and prior to his arrival at destination, or while receiving care and maintenance pending placement in employment…\n\nThe Order in Council does not define “immigrant.” However, the term “immigrant” was defined in The Immigration Act, S.C. 1952, c. 42, subsection 2(i) as “a person who seeks admission to Canada for permanent residence.”", - "current_to": "2011-06-27", + "text": "In other words, while a \"no credible basis\" finding undoubtedly exposes the person concerned to a relatively expeditious removal, removal in fact may be delayed. Legal and administrative safeguards against the removal of those likely to face persecution on their refoulement do exist, even though they are not as favourable as those available to unsuccessful refugee claimants in respect of whom each member of the Board has not made a \"no credible basis\" finding under subsection 69.1(9.1). (b) The international law argument\n\nCounsel for Mr. Rahaman argues that compliance with international norms requires that unsuccessful refugee claimants not be subject to refoulement pending the disposition of legal proceedings brought to review the rejection of their refugee claims, unless their claims are manifestly unfounded. For the Court to interpret subsection 69.1(9.1) to include claims that cannot be said to be manifestly unfounded would put Canada out of line with international legal norms. Only when faced with completely unequivocal statutory language should the Court conclude that an Act of Parliament derogates from international norms respecting the protection of human rights. Sheikh, supra, is silent on this point, perhaps because the judicial recognition of the importance of international norms in the interpretation of statutory powers, and the review of their exercise, is a relatively recent phenomenon in Canada. (i) statutory interpretation: the international context", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-13", + "id": "fca-31447-19", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 33", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 35–36", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Definitions of terms in statutes apply to terms contained in orders made under them: Interpretation Act, R.S.C. 1952, c. 158, section 38. It is not clear from the Order in Council whether it was made under the Immigration Act. But, in my view, the definition of “immigrant” in the Immigration Act sheds light on the meaning of that term in the Order in Council given that its subject-matter is related to immigration. I also note that the Minister of Health and Welfare, when offering a rationale for the Order in Council and in discussing its intended scope of coverage, referred to “immigrants as defined,” which must be taken to be “immigrants” as defined under the Immigration Act as it stood at that time: see paragraph 27, above.", - "current_to": "2011-06-27", + "text": "Nowadays, there is no doubt that, even when not incorporated by Act of Parliament into Canadian law, international norms are part of the context within which domestic statutes are to be interpreted: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 70. Similarly, in Suresh v. Canada, 2002 SCC 1, at paragraph 59, when referring to the Immigration Act the Supreme Court of Canada stated: \"A complete understanding of the Act ... requires consideration of the international perspective.\" It was also said in Suresh, supra, at paragraph 60, that the reason for examining the international dimension is not to determine if Canada is in breach of its international legal obligations as such, but to use prevailing international norms to inform the interpretation of a provision of domestic law, in that case section 7 of the Canadian Charter of Rights and Freedoms.\n\nOf course, the weight to be afforded to international norms that have not been incorporated by statute into Canadian law will depend on all the circumstances of the case, including the legal authoritativeness of their legal source, their specificity and, in the case of customary international law, the uniformity of state practice. Moreover, although subject to the restraints imposed by the Constitution Acts 1867 to 1982, including the Charter, Parliament is the ultimate source of law in our system of law and government. Hence, effect cannot be given to unincorporated international norms that are inconsistent with the clear provisions of an Act of Parliament. Were it otherwise, the principle that treaties and other international norms only become part of the domestic law of Canada if enacted by Parliament would be undermined.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-14", + "id": "fca-31447-20", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 34–35", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 37–39", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, only those who seek admission to Canada for permanent residence on or before entry to Canada fall under paragraph (a). Paragraph (a) uses the term “immigrant,” meaning “a person who seeks admission to Canada for permanent residence,” and the express wording of paragraph (a) shows that person seeking permanent residence must satisfy one of two conditions: (i) The person seeking admission to Canada for permanent residence was “admitted at a port of entry” but has not “[arrived] at destination,” i.e., is in transit between entry and destination, or (ii) The person seeking admission to Canada for permanent residence is receiving “care and maintenance pending placement in employment.” A fair reading of the Order in Council is that the “care and maintenance” is at the direction of the immigration authorities who met the person upon entry to Canada. In my view, this is a fair reading in light of the history of the Order in Council, reviewed by the Federal Court at paragraphs 30-37, which shows that this medical coverage program was always focused on those entering Canada for the first time, not on those who had already arrived in Canada.\n\nThe appellant does not qualify under either of these conditions. She was not admitted into Canada as an applicant for permanent residence. She was not in transit between entry and destination. The immigration authorities did not direct her “care and maintenance pending placement in employment.” The appellant was simply a visitor who decided to remain in Canada, contrary to Canada’s immigration law. (3) Paragraph (b) of the Order in Council", - "current_to": "2011-06-27", + "text": "The question before us is whether the interpretation of subsection 69.1(9.1) in Sheikh, supra, authorizes the removal of unsuccessful refugee claimants contrary to international norms. This will occur if a claim supported by \"no credible or trustworthy evidence\" is not also \"manifestly unfounded\" as that phrase is understood in the international community. (ii) a right to remain pending an appeal?\n\nThe first step to answering the above question is to ask if international norms require states to ensure that an unsuccessful refugee claimant is not returned to the country of alleged persecution pending the final disposition of a legal challenge to the dismissal of the refugee claim. This question is not expressly addressed in the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (the Geneva Convention), or in the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, which are the most authoritative legal texts that define the status of refugee and establish the key principles of protection, including non-refoulement.\n\nHowever, in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-15", + "id": "fca-31447-21", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 36–39", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 40–41", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Paragraph (b) of the Order in Council provides as follows: (b) a person who at any time is subject to Immigration jurisdiction or for whom the Immigration authorities feel responsible and who has been referred for examination and/or treatment by an authorized Immigration officer…\n\nParagraph (b) refers to “a person,” not an “immigrant,” the term used in paragraph (a). As a result, paragraph (b) covers more than those seeking permanent residence in Canada.\n\nOne requirement that must be met under paragraph (b) is that the person is “subject to Immigration jurisdiction” or is a person “for whom the Immigration authorities feel responsible.”\n\nAt paragraph 46-50 of its reasons, the Federal Court interpreted these phrases in light of their plain wording and the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957, excerpts of which are reproduced at paragraph 27, above. The Federal Court held (at paragraph 49) that those “subject to Immigration jurisdiction” are: …those persons who are passing through a port of entry and thus subject to the jurisdiction of the Immigration authorities, those persons whose status is being processed by the Immigration authorities, and those persons under detention and in the custody of the Immigration authorities. Persons temporarily under the jurisdiction of the Immigration authorities would also include refugee claimants… I agree with this conclusion and the reasons the Federal Court offered in support of it (at paragraphs 46-50).", - "current_to": "2011-06-27", + "text": "The Executive Committee has recommended that unsuccessful refugee claimants be given a reasonable opportunity to appeal from a refusal to recognize their claim, and be permitted to remain in the country of refuge pending appeal, before they are returned to their home country where they may be subject to identifiable risk: see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: 1998), UN GA, 32 Sess., UN. Doc A/32/12/Add.1 (1977). Similarly, in 1995 the Council of the European Union adopted the Resolution on Minimum Guarantees for Asylum Procedures (\"EU Council Resolution\"), which provides in paragraph 17 that as a general rule asylum seekers should be permitted to remain in the territory of the Member State where protection is being sought until the refusal of the claim has been taken on appeal. See also James C. Hathaway and Anne K. Cusick, \"Refugee Rights Are Not Negotiable\" (2000), Georgetown Imm. L.J. 481, at page 496.\n\nIn my opinion, this material indicates the existence of an international norm that signatory states to the Geneva Convention should normally permit refugee claimants to remain in their territory until they have exhausted any right of appeal or review. This is what paragraph 49(1)(c) of the Immigration Act provides.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-16", + "id": "fca-31447-22", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 40–43", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 42–43", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "However, by way of clarification, “those persons whose status is being processed by the Immigration authorities” must mean a person who sought that status before or upon entry to Canada. The Program could not have been intended to pay the medical expenses of those who arrive as visitors but remain illegally in Canada and who, after the better part of a decade of living illegally in Canada, suddenly choose to try to regularize their immigration status. Coverage for those persons would be against the whole tenor of the Order in Council, the history of the Order in Council, and the Minister’s stated rationale.\n\nParagraph (b) contains another requirement, expressed in the phrase “and who has been referred for examination and/or treatment by an authorized Immigration officer.” Does that phrase apply only to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer”? Or does it apply both to those who “[have] been referred for examination and/or treatment by an authorized Immigration officer” and to those who are “subject to Immigration jurisdiction”?\n\nIn my view, the latter must be the correct interpretation: all those qualified under paragraph (b) must have been “referred for examination and/or treatment by an authorized Immigration officer.”\n\nThis interpretation is supported by the rationale offered by the Minister of National Health and Welfare for the Order in Council in 1957: see paragraph 27, above.", - "current_to": "2011-06-27", + "text": "However, it is also recognized in international instruments that states may derogate from the normal rule by providing more limited review and appeal rights to unsuccessful claimants whose claims have been held to be \"manifestly unfounded\". Thus, the Executive Committee has indicated a consensus on the problem created by the increase in applicants who \"clearly have no valid claim\" or whose claims are \"manifestly unfounded\", and that states must create separate national procedures to address this problem: Conclusion No. 28 (XXXIII) 1982, UN UNHCR, 32d Sess., UN Doc. EC/SCP/22/Rev.1 (1982), Conclusion No.30 (XXXIV) 1983, UN Doc., Report on the 34th Session of The Executive Committee of the High Commissioner's Programme, UN GAOR, 34th Sess., A/AC.96/631 (1993), Conclusion No. 87 (L) 1999, at paragraph (k).\n\nConsequently, the Executive Committee has recommended (Conclusion No. 30, supra, at paragraph (e)(iii)) that, while refugee claimants must be given an opportunity to have a negative decision reviewed before their forcible removal, \"this review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.\" See also UN Global Consultations on International Protection, 2d Meeting, UN Doc. EC/GC/01/12 (2001) (\"Global Consultations\"), at paragraph 32. The EU Council Resolution provides that a person whose claim is held to be manifestly unfounded should at least be entitled to request the body reviewing the refusal of the claim to stay the claimant's removal until the review is complete.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-17", + "id": "fca-31447-23", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 44–46", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 44–45", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, it must be remembered that in 1957, when the Order in Council was passed, Canada did not have a government-administered medicare scheme. Canadians were obligated to pay for their own health care or arrange for insurance coverage. Given that historical context, it does not make sense that all those “subject to Immigration jurisdiction” would have emergency medical coverage courtesy of the state, even if not specifically “referred for examination and/or treatment by an authorized Immigration officer”. I would add that there is no evidence before the Court to suggest that paragraph (b) was ever interpreted in that way.\n\nGiven this interpretation, the appellant does not qualify under paragraph (b). Upon entry to Canada, she did not claim a status other than visitor and the Immigration authorities were not processing any other status. She was not in the custody of the Immigration authorities, nor was she a refugee claimant. At no time was she “referred for examination and/or treatment by an authorized Immigration officer.” At no time did the “Immigration authorities feel responsible” for her. The appellant was just a visitor who decided to remain in Canada, contrary to Canada’s immigration law.\n\nFor the foregoing reasons, I find that the appellant was ineligible to receive medical coverage under the Order in Council. Therefore, the Director was correct in deciding to deny the appellant medical coverage and the Federal Court was correct in upholding the Director’s decision. F. Are the appellant’s rights under sections 7 and 15 of the Charter infringed? (1) A preliminary observation", - "current_to": "2011-06-27", + "text": "In my opinion, the restricted post-determination rights afforded by the Immigration Act to those whose claims are found to have no credible basis are not inconsistent with international norms as evidenced by the above instruments. \"No credible basis\" claimants may apply for judicial review and request the Court to grant a stay pending the disposition of the application, and those found to be at serious risk in their country of origin will not be removed. A problem arises, however, if a claim can fall within this category, but is not \"manifestly unfounded\" as that term is commonly understood in the international community. As I have already noted, a person whose claim is not \"manifestly unfounded\" should be permitted to remain pending the disposition of the appeal or review. (iii) \"manifestly unfounded or clearly abusive\"\n\nThere is no doubt that some international instruments appear to give a very restricted meaning to the term \"manifestly unfounded\". For example, paragraph (d) of Conclusion 30, supra, defines claims that are \"manifestly unfounded\" as \"those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 ... Convention ... nor to any other criteria justifying the granting of asylum\".", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-18", + "id": "fca-31447-24", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 47–51", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 46–47", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant raised the constitutional issues for the first time in her application for judicial review in the Federal Court and filed her evidence on those issues in that Court. Before the Director, she did not raise the constitutional issues or offer evidence on those issues.\n\nSometimes this is a fatal flaw that prevents the reviewing court from considering the constitutional issue on judicial review: Okwuobi v. Lester B. Pearson School Board; Casimir v. Quebec (Attorney General); Zorrilla v. Quebec (Attorney General), 2005 SCC 16 at paragraphs 38-40, [2005] 1 S.C.R. 257.\n\nIn this case, however, the objection would not lie if the Director did not have the jurisdiction to decide the constitutional issues: Okwuobi, supra, at paragraphs 28-34 and 38; Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504. In that circumstance, the Federal Court would be the first place where the constitutional issues could be determined.\n\nThe point was not argued before us and, given my ultimate disposition of the constitutional issues, I need not decide whether the objection lies in this case. (2) The standard of review\n\nWhat is the standard of review of the Federal Court’s decision on the constitutional issues? Since the Director did not consider the constitutional issues, we must look to the law concerning appellate standards of review, not administrative law standards of review.", - "current_to": "2011-06-27", + "text": "More recent pronouncements, however, are less categorical, no doubt in response to a growing number of genuine and bogus refugee claims. For example, Article 28 of the EU Council Resolution, supra, provides a longer list of the grounds on which a Member State may dismiss a refuge claim as manifestly unfounded, although the absence of credible evidence supporting the claim is not among them. However, the inclusion of two grounds on which a claim must not be considered as manifestly unfounded suggests that the longer list of what makes a claim manifestly unfounded is not intended to be exhaustive.\n\nIn addition, the recent report arising from the Global Consultations process of the United Nations canvasses the various approaches adopted by states to the definition of \"manifestly unfounded\": supra, at paragraphs 28-31. In particular, it says that some states have \"factored credibility, or the absence thereof, into the original assessment of manifest unfoundedness\", while others have taken the position that a claim may be manifestly unfounded if made with the intention of misleading the national authorities. Evidence that there is as yet no international consensus on the scope of the term, \"manifestly unfounded\" is provided by paragraph 26 of this document, which states: There is a need, in UNHCR's assessment, to promote a more common understanding of the types of claim which would merit the presumption that they are manifestly unfounded or clearly abusive, and which could be examined under the accelerated procedure.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-19", + "id": "fca-31447-25", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 52–54", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 48–50", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "The normal rule on appeals is that on pure questions of law or questions of mixed fact and law where the law predominates or is “extricable”, the standard of review is correctness. On questions of fact, or questions of mixed fact and law that are primarily factual in nature, the standard of review is palpable and overriding error. See Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; H.L. v. Canada (A.G.), 2005 SCC 25, [2005] 1 S.C.R. 401.\n\nOn occasion, the Supreme Court has stated that the appellate standard of review on decisions in constitutional cases is correctness and has used language to suggest that there can be no deference on any question, factual or legal, in a constitutional case: see, e.g., Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62 at paragraph 36, [2003] 3 S.C.R. 3 (“[d]eference ends, however, where the constitutional rights that the courts are charged with protecting begin”).\n\nI do not take these statements to mean that in a constitutional case an appellate court can readily interfere with factual findings and exercises of discretion that are heavily suffused with facts. There are many Supreme Court decisions that confirm that deference on such matters is still warranted: see, e.g., Lake v. Canada (Minister of Justice), [2008] 1 S.C.R. 761 at paragraph 34, 2008 SCC 23; R. v. Buhay, [2003] 1 S.C.R. 631 at paragraphs 44-45, 2003 SCC 30; R. v. Stillman, [1997] 1 S.C.R. 607 at paragraph 68; R. v. Belnavis, [1997] 3 S.C.R. 341; Dagenais v. Canadian Broadcasting Corporation, [1994] 3 S.C.R. 835 at paragraphs 188-189.", - "current_to": "2011-06-27", + "text": "Further evidence of state practices that widen the categories of manifestly unfounded claims to include those that are supported by no credible evidence is supplied by G. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Clarendon Press, 1996), at pages 344-47.\n\nOn the basis of the material considered above it is not possible in my opinion to conclude that a comprehensive international norm has emerged defining a manifestly unfounded or abusive application that would exclude a claim that has \"no credible basis\", as interpreted in Sheikh, supra. I would also note in this regard that under Canadian law all eligible inland claimants have a right to a full adjudicative hearing before an independent administrative tribunal, and that a finding of \"no credible basis\" is only made on the basis of this process. F. CONCLUSIONS\n\nIn view of my conclusion on the indeterminate state of international law on whether any claim that has no credible basis within the meaning of subsection 69.1(9.1) is also manifestly unfounded, it is unnecessary to consider whether that provision should be interpreted to include only claims that are manifestly unfounded or clearly abusive. I would only note that, although \"manifestly unfounded or clearly abusive\" is the phrase used in international instruments, Parliament has retained the term \"no credible basis\" in the Act.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-20", + "id": "fca-31447-26", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 55–58", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "paras 51–52", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "In other words, the normal appellate standards of review discussed in Housen and H.L. apply in constitutional cases. However, as a practical matter, it is fair to say that correctness review probably happens more frequently in constitutional appeals because of the centrality of the legal issues in such appeals, and the fact that questions of constitutional law are often extricable from the questions of mixed fact and law that arise. (3) Section 7 of the Charter\n\nIn the Federal Court and in this Court, the appellant submits that her exclusion from medical coverage under the Order in Council infringes her section 7 rights to life and security of the person and her right not to be deprived thereof except in accordance with the principles of fundamental justice. (a) Rights to life and security of the person\n\nThe Federal Court found that the appellant’s rights to life and security of the person under section 7 of the Charter were infringed (at paragraph 91): The evidence before the Court establishes both that the [appellant] has experienced extreme delay in receiving medical treatment and that she has suffered severe psychological stress resulting from the uncertainty surrounding whether she will receive the medical treatment she needs. More importantly, the record before the Court establishes that the applicant’s exclusion from…coverage [under the Order in Council] has exposed her to a risk to her life as well as to long-term, and potentially irreversible, negative health consequences…. In my view, the applicant has established a deprivation of her right to life, liberty and security of the person that was caused by her exclusion from the [Order in Council].\n\nThis finding is open to challenge on two grounds. I would reject the first ground, but accept the second. - I -", - "current_to": "2011-06-27", + "text": "Finally, while I have not been able to accept the position advanced by counsel for Mr. Rahaman in this appeal, I would agree that the Board should not routinely state that a claim has \"no credible basis\" whenever it concludes that the claimant is not a credible witness. As I have attempted to demonstrate, subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.\n\nFor these reasons, I agree with Teitelbaum J. that, having considered the oral and documentary evidence before it, the Board committed no reviewable error in stating that Mr. Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the appeal and answer the certified question as follows: Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-21", + "id": "fca-31447-27", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2002 FCA 89", + "act_short": "Rahaman", + "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 59–61", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", + "marginal_note": "para 53", + "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", "part": "Federal Court of Appeal", "division": "", - "text": "First, the respondent disputes the Federal Court’s factual finding that the appellant has been exposed to delays and risks. On the facts, the respondent submits that the appellant has been able to obtain hospital admissions and surgeries when required and has been under the active care of both a family doctor and a number of specialists. The respondent adds that in Ontario, where the appellant lives, hospitals cannot deny emergency medical treatment to anyone, when to do so would endanger life: Public Hospitals Act, R.S.O. 1990, c. P.40. As a result, the respondent submits that the appellant has not established a serious deprivation of her right to life or security of the person under section 7 of the Charter.\n\nThe respondent’s submissions gain force from legal proposition that the effects on the protected interests under section 7 must be more than trivial. They must be serious: Chaoulli v. Quebec (Attorney General), 2005 SCC 35 at paragraph 123, [2005] 1 S.C.R. 791; R. v. Morgentaler, [1988] 1 S.C.R. 30 at pages 56 and 173; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307; New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46 at paragraph 60.\n\nBearing in mind the standard of review, I am not prepared to interfere with the Federal Court’s factual conclusion that the appellant was exposed to a significant risk to her life and health, a risk significant enough to trigger a violation of her rights to life and security of the person. The Federal Court had an evidentiary basis for its finding.", - "current_to": "2011-06-27", + "text": "Counsel for the Minister requested costs. However, rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-235, provides that costs are not awarded in respect of an application or an appeal under the Rules, \"unless the Court, for special reasons, so orders.\" In my opinion no special reasons exist here. Given the limited authority from this Court on the interpretation of subsection 69.1(9.1), and the newly emerging importance of international human rights norms for the interpretation of domestic legislation, I cannot regard this appeal as in any way improper or inappropriately brought, a view obviously shared by the Application Judge when he certified a question for appeal. \"John M. Evans\" J.A. \"I agree A.J. Stone J.A.\" \"I agree B. Malone J.A.\"", + "current_to": "2002-03-01", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" }, { - "id": "fca-37227-22", + "id": "fca-521840-1", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 62–63", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 1–3", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "At paragraphs 6 to 13, the Federal Court reviewed the appellant’s medical condition while she has remained in Canada. Before 2006, she only required minor medical care. After 2006, however, her medical needs have substantially increased as her health has worsened. Her conditions include uterine fibroids, uncontrolled hypertension, nephrotic syndrome, poorly controlled diabetes, a pulmonary embolism, decreased mobility, shortness of breath, hyperlipidemia and anxiety.\n\nThe Federal Court reviewed the appellant’s access to health care services and medication (at paragraphs 6 to 9). Before 2006, the appellant was able to work. She earned enough income to pay for the minor medical care and medication that she required. After 2006, her medical needs surpassed her ability to pay but she was still able to obtain some treatment. There is some evidence that she had had access to medical assistance at a community health centre. In 2008 she underwent an operation at Humber River Regional Hospital for the removal of uterine fibroids. She was billed for that surgery, but was unable to pay the bill. Later in 2008, the appellant was admitted to St. Michael’s Hospital for ten days for uncontrolled hypertension. In 2009, she was admitted to St. Michael’s Hospital for eight days during which a pulmonary embolism was found. She was unable to pay for the medication to treat that, but the hospital gave her a supply.", - "current_to": "2011-06-27", + "text": "This is an appeal of a judgment of the Federal Court (per Fothergill J.) (the Application Judge) dated November 28, 2024 (2024 FC 1914) (the Judgment), dismissing the appellant’s application for judicial review of a decision of the Immigration Division (the ID) of the Immigration and Refugee Board of Canada (IRB).\n\nIn its decision, dated May 31, 2023 (ID File 0003-C2-00553-01 AH) (the ID Decision), the ID found the appellant, Nini Johana Rodriguez Anzola (Ms. Rodriguez Anzola or the appellant), to be inadmissible to Canada on grounds of serious criminality pursuant to paragraph 36(1)(b) of the Immigration and Refugee Protection Act, SC 2001, c. 27 (the Act) for having committed an offence in her country of origin (trafficking or carrying illegal drugs) which, if committed in Canada, would constitute an offence under an Act of Parliament – here the Controlled Drugs and Substances Act, SC 1996, c. 19 – punishable by a maximum term of imprisonment of at least 10 years.\n\nMs. Rodriguez Anzola, a refugee claimant from Colombia, does not dispute that she pleaded guilty to the Colombian offence, received a jail sentence of 48 months and did not appeal her conviction or sentence. Nor does she dispute the equivalency of the essential elements of the Colombian and Canadian offences.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-23", + "id": "fca-521840-2", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 64–66", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 4–5", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Evidence was before the Federal Court suggesting that the appellant’s access to health care services and medication was impaired. While eventually the appellant did have her uterine fibroids surgically removed at Humber River Regional Hospital in 2006, at first she was denied service at Woman’s College Hospital due to her lack of insurance coverage and her inability to pay. In 2008, while at St. Michael’s Hospital, a test aimed at determining the cause of her nephritic syndrome could not be performed owing to her inability to pay for treatment and for the medicine that might be necessary if complications arose.\n\nAlso before the Federal Court was expert medical evidence. Overall, this evidence, accepted by the Federal Court, suggested that (at paragraph 91): [if the appellant] were to not receive timely and appropriate health care and medications in the future, she would be at very high risk of immediate death (due to recurrent blood clots and pulmonary embolism), severe medium-term complications (such as kidney failure and subsequent requirement for dialysis), and other long-term complications of poorly-controlled diabetes and hypertension (such as blindness, foot ulcers, leg amputation, heart attack, and stroke).\n\nGiven this evidence, and bearing in mind the deferential standard of review that must be applied to the Federal Court’s findings of fact, I would not give effect to the respondent’s submission that the Federal Court erred in finding that the appellant was exposed to serious health risks. - II -", - "current_to": "2011-06-27", + "text": "However, Ms. Rodriguez Anzola claims that she, together with her husband, Mr. Botero Martinez, who faced the same charges and who also fled Colombia to seek refugee status in Canada, were coerced into committing that crime by the Revolutionary Armed Forces of Colombia (the FARC), a Colombian narco-trafficking and guerilla organization. She further claims that, although the defence of duress can legally be raised under Colombian law, it was not practically and reasonably available to her (and her husband), something she says the ID failed to meaningfully consider in rendering its decision in her case.\n\nThe Application Judge refused to interfere with the ID’s decision, finding that the ID had properly limited its analysis to the equivalency of the Colombian and Canadian offences and to whether Ms. Rodriguez Anzola had committed the essential elements of the offence.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-24", + "id": "fca-521840-3", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 67–70", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 6–7", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "As mentioned above, based on this evidence, the Federal Court found that the Order in Council created a risk to the appellant. That is true in the sense that if the Order in Council were broader and provided her with all of the treatment and medication she needs, all risk would be averted. But that is not sufficient legally to demonstrate that the Order in Council has caused injury to the appellant’s rights to life and security of the person.\n\nIt is incumbent on the appellant to establish that the failure of the Order in Council to provide medical coverage to her is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter: TrueHope Nutritional Support Limited v. Canada (A.G.), 2011 FCA 114 at paragraph 11.\n\nThe provision of public health coverage and the regulation of access to it is primarily the responsibility of the provinces and the territories, with the federal government playing a role in funding, the setting of standards under the Canada Health Act, R.S.C. 1985, c C-6 and, occasionally, regulation in specific areas under its criminal law power: Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457.\n\nIf there is an operative cause of the appellant’s difficulties, it is the fact that although she is getting some treatment under provincial law (see paragraph 59, above), that law does not go far enough to cover all of her medical needs.", - "current_to": "2011-06-27", + "text": "That said, the Application Judge accepted that Ms. Rodriguez Anzola’s case “may be distinct from those that gave rise to the leading appellate jurisprudence on criminal inadmissibility” and that, therefore, “[s]he should be given the opportunity to revisit the matter before [this Court], in light of the particular circumstances that gave rise to the finding of inadmissibility in her case” (Judgment at para. 48). He observed in this regard that the recent decision of this Court in Canada (Public Safety and Emergency Preparedness) v. Gaytan, 2021 FCA 163 (Gaytan) “confirmed that the ID may consider a defence of duress in the context of inadmissibility proceedings pursuant to [paragraph] 37(1)(a) of the [Act] (membership in a criminal organization; participation in specified transnational crimes)”, which, in his view, “suggests that empowering the ID to consider certain defences for the first time would not be excessively burdensome” (Judgment at para. 47).\n\nAs a result, and as permitted by paragraph 74(d) of the Act, the Application Judge certified the following question for appeal: In determining whether an individual is inadmissible under [paragraph] 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused certain legal defences not to be practically available to the claimant in the foreign jurisdiction?", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-25", + "id": "fca-521840-4", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 71–73", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 8–12", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant has attempted to obtain coverage under the Ontario Health Insurance Plan. Ontario refused coverage because, as a person in Canada contrary to Canadian immigration law, the appellant is not a “resident” of Ontario under R.R.O. 1990, Regulation 552, section 1.4, enacted under the Health Insurance Act, R.S.O. 1990, c. H.6. She did not judicially review Ontario’s refusal, nor did she argue that Ontario’s eligibility requirements violate her rights under sections 7 and 15 of the Charter. Nor did she challenge the Public Hospitals Act, supra, and argue that it is constitutionally underinclusive or over restrictive. The record reveals no attempt by the appellant to assert section 7 or 15 of the Charter against provincial legislation that limits her access to health care.\n\nFurther, and most fundamentally, the appellant by her own conduct – not the federal government by its Order in Council – has endangered her life and health. The appellant entered Canada as a visitor. She remained in Canada for many years, illegally. Had she acted legally and obtained legal immigration status in Canada, she would have been entitled to coverage under the Ontario Health Insurance Plan: see section 1.4 of Regulation 552, supra.\n\nIn my view, the appellant has not met her burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person under section 7 of the Charter. (b) The principles of fundamental justice", - "current_to": "2011-06-27", + "text": "For the reasons set out below, I would grant the appeal and answer in the affirmative the following question, which I find to be more focused on the appellant’s circumstances than the question certified by the Application Judge: In determining whether an individual is inadmissible under paragraph 36(1)(b) of the Immigration and Refugee Protection Act, are the Immigration Division and Immigration Appeal Division of the Immigration and Refugee Board entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction?\n\nThe facts that led to Ms. Rodriguez Anzola (and her husband) fleeing Colombia for Canada are not in dispute. They were aptly summarized as follows by the Application Judge:\n\nMr. Botero Martinez worked as a taxi driver in Colombia. One of his clients was in charge of the FARC in Cundinamarca and Bogota. He demanded that Mr. Botero Martinez and Ms. Rodriguez Anzola transport cocaine abroad. He threatened to harm the family and recruit the children into the FARC.\n\nThe couple initially ignored repeated telephone calls from the FARC, but in November 2016, Ms. Rodriguez Anzola’s niece returned from school crying. She said that three men had approached her and threatened to hurt her cousins if her uncle did not answer his telephone.\n\nMr. Botero Martinez and Ms. Rodriguez Anzola eventually acceded to the FARC’s demands. On November 16, 2016, they ingested cocaine in advance of a flight to Spain. However, they were apprehended by the Colombian authorities at the Bogota airport.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-26", + "id": "fca-521840-5", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 74–77", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 13–14", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Even if the appellant had discharged the burden of showing that the Order in Council is the operative cause of the injury to her rights to life and security of the person, she would still have to establish that the deprivation of her rights to life and security of the person was contrary to the principles of fundamental justice. Here as well, the appellant has fallen short.\n\nThe appellant submits at paragraph 34 of her memorandum of fact and law that “[g]overnments ought never to deny access to healthcare necessary to life as a means of discouraging unwanted or illegal activity, including to those who have entered or remained in a country without legal or documented status.” The appellant submits that “[t]his principle is fundamental to judicial and legislative practice in Canada.”\n\nAt the root of the appellant’s submission are assertions that the principles of fundamental justice under section 7 of the Charter require our governments to provide access to health care to everyone inside our borders, and that access cannot be denied, even to those defying our immigration laws, even if we wish to discourage defiance of our immigration laws. I reject these assertions. They are no part of our law or practice, and they never have been.\n\nThe Charter does not confer a freestanding constitutional right to health care: Chaoulli, supra at paragraph 104 (per McLachlin C.J.C. and Major J.).", - "current_to": "2011-06-27", + "text": "In December 2020, while Mr. Botero Martinez was still serving his criminal sentence, he continued to receive threatening telephone calls from the FARC. At the end of his house arrest in February 2021, the family moved to another location within Colombia.\n\nMr. Botero Martinez says he was physically assaulted in November 2021. The following month, his children were approached by members of the FARC. On January 1, 2022, one of his sons and his girlfriend were seriously injured.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-27", + "id": "fca-521840-6", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 78–80", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "para 15", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The results reached in other recent cases confirm that the Charter does not confer a freestanding constitutional right to health care. In these recent cases, courts have denied claims under the Charter to obtain state funding or financial assistance for necessary treatments: Auton (Guardian ad litem of) v. British Columbia (A.G.), 2004 SCC 78, [2004] 3 S.C.R. 657; Ali v. Canada, 2008 FCA 190; Wynberg v. Ontario (2006), 82 O.R. (3d) 561 (C.A.); Eliopoulos v. Ontario (2006), 82 O.R. (3d) 321 (C.A.); Flora v. Ontario Health Insurance Plan, 2008 ONCA 538, (2008), 91 O.R. (3d) 412 (C.A.).\n\nIn words apposite to the case at Bar, Justice Linden of this Court wrote: The appellants are, in essence, seeking to expand the law…so as to create a new human right to a minimum level of health care…. [T]he law in Canada has not extended that far…[A] freestanding right to health care for all of the people of the world who happen to be…in Canada would not likely be contemplated by the Supreme Court. (Covarrubias v. Canada (Minister of Citizenship and Immigration), 2006 FCA 365 at paragraph 36, [2007] 3 F.C.R. 169).\n\nThese judicial statements and holdings suggest that the principle proffered by the appellant cannot qualify as a principle of fundamental justice under section 7 of the Charter. It is not a “legal principle” that is “vital or fundamental to our societal notion of criminal justice,” nor is there “a consensus that the rule or principle is fundamental to the way in which the legal system ought fairly to operate”: R. v. Malmo‑Levine; R. v. Caine, 2003 SCC 74 at paragraphs 112-113, [2003] 3 S.C.R. 571; R. v. D.B., 2008 SCC 25 at paragraph 46, [2008] 2 S.C.R. 3; Canada (Prime Minister) v. Khadr, 2010 SCC 3 at paragraph 23, [2010] 1 S.C.R. 44.", - "current_to": "2011-06-27", + "text": "Mr. Botero Martinez arrived in Canada with his sons and niece on January 11, 2022, and sought refugee protection. Ms. Rodriguez Anzola arrived in Canada on April 11, 2022, and made a similar refugee claim. [10] Shortly after their respective arrival to Canada, Ms. Rodriguez Anzola and her husband were referred to the ID for admissibility hearings due to their criminal convictions in Colombia. Those hearings were held separately, before different ID members, and produced, on the same set of facts and arguments, conflicting outcomes as Mr. Botero Martinez was found not to be inadmissible to Canada for serious criminality on the ground that the defence of duress, although legally available, was not reasonably available to him and that, consequently, the equivalency between the Colombian and Canadian offences had not been established. [11] I note that the ID’s finding in Mr. Botero Martinez’s case is currently under appeal before the Immigration Appeal Division and that said appeal is being held in abeyance pending the outcome of the present matter. [12] In the present matter, the ID found that Ms. Rodriguez Anzola had the opportunity to present the defence of duress at trial but had chosen not to, noting that she had instead pleaded guilty to the impugned offence in exchange for a significantly reduced sentence. The ID further noted that Ms. Rodriguez Anzola was at the time represented by counsel, that counsel was aware of the threats she and her family had sustained and that discussions were held with the prosecution on the involuntary nature of her actions. [13] The ID held that it would not be appropriate, in such circumstances, “to speculate now on the possible application of certain defences” (ID Decision at para. 58).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-28", + "id": "fca-521840-7", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 81–82", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 15–17", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The appellant invokes other principles of fundamental justice under section 7. She submits that her exclusion from coverage by the Order in Council is arbitrary. She rightly submits that the Supreme Court has recognized that an arbitrary law – a law that “bears no relation to, or is inconsistent with, the objective that lies behind [it]” – will be contrary to the principles of fundamental justice: A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30 at paragraph 103, [2009] 2 S.C.R. 181; Chaoulli, supra at paragraph 104 (per McLachlin C.J.C and Major J.), and Malmo‑Levine, supra at paragraph 135.\n\nHowever, the Order in Council is not arbitrary. It is related to and consistent with the objective that lies behind it. As a general matter, as the analysis in paragraphs 31-46 above shows, the Order in Council is meant to provide temporary, emergency assistance to those who lawfully enter Canada and find themselves under the jurisdiction of the immigration authorities, or for whom the immigration authorities feel responsible. The Order in Council is not meant to provide ongoing medical coverage to all persons who have entered and who remain in Canada, lawfully or unlawfully.", - "current_to": "2011-06-27", + "text": "Being satisfied that the Colombian and Canadian offences were equivalent, the ID found Ms. Rodriguez Anzola to be inadmissible to Canada for serious criminality. [14] In concluding as it did, the ID relied in large part on Beltran v. Minister of Citizenship and Immigration, 2016 FC 1143 (Beltran), where the Federal Court held that the test for equivalency “does not contemplate the ID weighing evidence of a possible defence not raised in the foreign jurisdiction in order to determine whether the impugned conduct would have resulted in a conviction in Canada” (ID Decision at para. 55, quoting Beltran at para. 18). [15] I note that the ID neither discussed, nor mentioned, Gaytan in its reasons.\n\nOn judicial review, Ms. Rodriguez Anzola argued that the ID had committed two reviewable errors.\n\nFirst, she claimed that the ID had breached her right to procedural fairness by denying her request to submit additional materials in advance of the second – and final – day of the inadmissibility hearing. These materials (the Additional Material) consisted of two packages of documents, one containing counsel’s notes in relation to a decision of the Refugee Protection Division of the IRB granting refugee status to Ms. Rodriguez Anzola’s children and niece; the other containing additional information concerning Ms. Rodriguez Anzola’s fear of the FARC. The ID denied Ms. Rodriguez Anzola’s request on the ground that the Additional Material was “not germane to what was being decided and largely focused on events and issues that post-date the conviction that is the subject of this proceeding” (ID Decision at para. 30).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-29", + "id": "fca-521840-8", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 83–86", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 18–21", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "In this regard, I agree with the Federal Court and adopt its words (at paragraph 94): I do not accept the applicant’s submission that her exclusion from health care is not consistent with principles of fundamental justice because it is arbitrary. I see nothing arbitrary in denying financial coverage for health care to persons who have chosen to enter and remain in Canada illegally. To grant such coverage to those persons would make Canada a health-care safe-haven for all who require health care and health care services. There is nothing fundamentally unjust in refusing to create such a situation.\n\nThe appellant also submits that the Order in Council offends the principles of fundamental justice because it is unacceptably vague in the sense that it is unintelligible and impossible to interpret. This is a very high standard to meet and, accordingly, successful claims on this basis are extremely rare: R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606; Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031.\n\nThe appellant falls well short of establishing that high standard. As is evident from paragraphs 31-46 above, the Order in Council can be interpreted and a clear meaning can be gleaned from it.\n\nFinally, the appellant submits that the principles of fundamental justice must also take into account Canada’s obligations under various sources of international human rights law such as the right to life under article 6 of the International Covenant on Civil and Political Rights and rights to health under article 12 of the International Covenant on Economic, Social and Cultural Rights and article 5 of the International Convention on the Elimination of All forms of Racial Discrimination.", - "current_to": "2011-06-27", + "text": "Second, Ms. Rodriguez Anzola argued that the ID Decision was unreasonable on the ground that the ID had failed, when conducting the equivalency analysis, to meaningfully address her inability to raise the defence of duress at her criminal trial.\n\nOn procedural fairness, the Application Judge opined that the outcome regarding that issue was dependent on whether the ID was right in limiting its role to asserting the equivalency of the Colombian and Canadian offences as a matter of law and determining whether Ms. Rodriguez Anzola had committed the essential elements of the offence.\n\nAs indicated at the outset of these reasons, the Application Judge determined that the ID’s approach was consistent with binding jurisprudence and was therefore reasonable. As a result, he concluded that the Additional Material, to the extent it concerned the broader circumstances surrounding Ms. Rodriguez Anzola’s criminal trial, was irrelevant and that, therefore, the decision not to consider that material did not breach her right to procedural fairness.\n\nOn reasonableness, the Application Judge opined that the position advocated by Ms. Rodriguez Anzola departed from well-established principles, including that the ID must take a foreign conviction at face value and is not required, in determining whether the impugned conduct would have resulted in a conviction in Canada, to weigh evidence of a possible defence not raised in the foreign jurisdiction and speculate on the chances of success of that defence.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-30", + "id": "fca-521840-9", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 87–90", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 22–24", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "On the basis of Khadr, supra at paragraph 23, I accept that, in appropriate cases, courts can be assisted by these sources when defining the precise content of certain principles of fundamental justice under section 7. But in this case we are not at the point of defining the content of a principle of fundamental justice. We are not even at first base. The appellant has not offered a principle that meets the criteria set out in Malmo‑Levine, supra and D.B., supra for admission as a principle of fundamental justice under section 7 of the Charter.\n\nTherefore, I conclude that the appellant’s rights under section 7 are not infringed. (4) Section 15 of the Charter (a) General principles\n\nWhen assessing the merits of a subsection 15(1) claim, we must apply a two-part test: (1) whether the law creates a distinction that is based on an enumerated or analogous ground and (2) whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping: Withler v. Canada (Attorney General), 2011 SCC 12 at paragraph 30; R. v. Kapp, 2008 SCC 41 at paragraph 17, [2008] 2 S.C.R. 483.\n\nThe first step tells us that not all distinctions, in and of themselves, are contrary to s. 15(1) of the Charter: Withler, supra at paragraph 31; Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497; Ermineskin Indian Band and Nation v. Canada, 2009 SCC 9 at paragraph 188, [2009] 1 S.C.R. 222. Subsection 15(1) only covers distinctions made on the basis of the grounds enumerated in subsection 15(1), or grounds analogous to them.", - "current_to": "2011-06-27", + "text": "However, as mentioned previously, the Application Judge accepted that Ms. Rodriguez Anzola’s circumstances may be distinct from those that gave rise to the leading appellate jurisprudence on inadmissibility for serious criminality and that, therefore, she should be given the opportunity to revisit the present matter on appeal before this Court.\n\nThe main issue in this appeal concerns the authority of the ID, when called upon to determine whether an individual is inadmissible under paragraph 36(1)(b) of the Act, to consider extraneous circumstances that caused the legal defence of duress not to be practically available to that individual in the foreign jurisdiction. If that authority exists, then a second issue arises and it is whether the ID committed a reviewable error in making a finding of inadmissibility in Ms. Rodriguez Anzola’s circumstances.\n\nIt is settled law that when this Court hears an appeal from a decision of the Federal Court on judicial review, its role is to determine first whether the Federal Court selected the appropriate standard of review. If it did, then this Court must determine whether that standard was applied properly. When called upon to determine whether the appropriate standard was applied properly, this Court “performs a de novo review of the administrative decision” (Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45‑47 (Agraira); Gaytan at para. 20).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-31", + "id": "fca-521840-10", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 91–94", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 25–27", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The second step tells us that the focus under subsection 15(1) is not differential treatment, but rather discrimination. Therefore, in order to succeed, a section 15 claimant must show that the impact of the law is discriminatory: Withler, supra at paragraph 31; Andrews, supra at page 182; Ermineskin Indian Band, supra at paragraph 188; Kapp, supra at paragraph 28.\n\nDiscrimination has been described as follows: …a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations, or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits, and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed. (Andrews, supra, at pages 174-175.) (b) Application of the principles to this case\n\nThe appellant submits that her exclusion from the medical coverage afforded by the Order in Council infringed subsection 15(1) of the Charter because that exclusion was based on an enumerated and analogous ground, and was discriminatory.\n\nThe Federal Court rejected the appellant’s subsection 15(1) submission, primarily on the basis (at paragraphs 79-83) that the appellant had failed to establish that her exclusion from coverage under the Order in Council was based on an enumerated or analogous ground.", - "current_to": "2011-06-27", + "text": "Here, the Application Judge reviewed the substance of the ID’s finding of inadmissibility, including the ID’s approach in making that determination, on the presumptive standard of reasonableness. This was the correct call (Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 170 (Vavilov); Gaytan at para. 21). This is not disputed by the parties.\n\nWhat is in dispute is whether the Federal Court properly applied that standard to the circumstances of the case. Ms. Rodriguez Anzola contends it did not. To the extent that this Court, at that stage of the analysis, must “step into the shoes” of the Federal Court and focus on the ID Decision (Agraira at para. 46, quoting Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247), it must apply the standard of reasonableness to its own review of that decision.\n\nI pause to point out that this task is no different because the present appeal has been initiated on the basis of a certified question. Indeed, it is trite that the fact that appeals in the immigration context can only be brought through the certified question regime established under the Act, “neither rebuts the presumption of reasonableness, nor alters [this Court’s] task when it hears appeals from first instance judicial review decisions” (Mason v. Canada (Citizenship and Immigration), 2023 SCC 21 at para. 51 (Mason)). This is not disputed by the parties either.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-32", + "id": "fca-521840-11", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 95–98", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 28–30", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "I find no error in the Federal Court’s rejection of the appellant’s section 15 submissions. In my view, there are four main reasons why the appellant’s section 15 submissions must fail. - I -\n\nIn my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation. On this point, I substantially agree with the Federal Court reasons.\n\nIn this Court, the appellant suggests that the Order in Council creates a “primary distinction” enhanced by a “secondary intersecting ground.”\n\nThe primary distinction is said to be between foreign nationals possessing certain immigration status who are covered under the Order in Council, and other foreign nationals who possess another immigration status who are not covered. As we have seen, however, coverage is potentially available under paragraph (b) to all persons regardless of immigration status. For example, the appellant herself might have been covered by the Order in Council upon her arrival in Canada. Upon entry, she was legally admitted as a visitor. Had she been in desperate need of emergency medical attention at that time and could not otherwise afford it, and if the immigration authorities felt obligated to assist, she would have been covered by the Order in Council.", - "current_to": "2011-06-27", + "text": "As a third issue in this appeal, Ms. Rodriguez Anzola reiterates that it was procedurally unfair on the part of the ID not to consider the Additional Material and that the Application Judge erred in failing to set aside the ID Decision on that ground. She contends that this portion of the ID Decision must be reviewed on a standard of correctness, which, she says, is the standard applicable to questions of procedural fairness.\n\nHowever, to the extent that the Additional Material was found to be irrelevant as not being germane to what was being decided, and as largely focusing on events that post-dated Ms. Rodriguez Anzola’s conviction in Colombia, I am not persuaded that the ID’s refusal to consider the Additional Material raises procedural fairness concerns. On the contrary, the refusal in my view, is more akin to the ID determining what factually constrained the exercise of what it considered, rightly or wrongly, to be the scope of its decision-making authority in this case. This goes to the actual merits of the ID Decision and is reviewable, therefore, on a standard of reasonableness.\n\nBe that as it may, given the conclusions I have reached on the first two issues, it will not be necessary to address the third issue.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-33", + "id": "fca-521840-12", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 99", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 31–32", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Further, I do not accept that “immigration status” qualifies as an analogous ground under section 15 of the Charter, for many of the reasons set out in Corbiere v. Canada (Minister of Indian and Northern Affairs), [1999] 2 S.C.R. 203 at paragraph 13, recently approved by the Supreme Court in Withler, supra at paragraph 33. “Immigration status” is not a “[characteristic] that we cannot change.” It is not “immutable or changeable only at unacceptable cost to personal identity.” Finally “immigration status” – in this case, presence in Canada illegally – is a characteristic that the government has a “legitimate interest in expecting [the person] to change.” Indeed, the government has a real, valid and justified interest in expecting those present in Canada to have a legal right to be in Canada. See also Forrest v. Canada (A.G.), 2006 FCA 400 at paragraph 16; Irshad (Litigation Guardian of) v. Ontario (Minister of Health) (2001), 55 O.R. (3d) 43 (C.A.) at paragraphs 133-136.", - "current_to": "2011-06-27", + "text": "In addressing this first issue, I will first explain why the question certified by the Application Judge needs to be slightly modified. Second, I will describe, in broad terms, the Act’s inadmissibility framework. Third, I will summarize the parties’ positions on that issue. Fourth, I will address whether, in the first place, duress is a relevant constraint when determining inadmissibility under paragraph 36(1)(b) of the Act. In so doing, I will discuss both the relevance and impact of Gaytan on the present matter. I will discuss as well the place – and importance – of the defence of duress on the concept of criminal liability in Canadian criminal law and its interplay with the Act’s inadmissibility framework, including when a non-citizen is found to be inadmissible for having been convicted of a serious crime in the foreign jurisdiction but who can show that they were prevented from raising the defence of duress due to extraneous circumstances. Finally, I will demonstrate that a positive response to that first question, contrary to the respondent’s contention, does not overrule this Court’s previous jurisprudence on inadmissibility for serious criminality and is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nThe test for certification consists in finding whether there is a serious question of general importance and of broad significance which transcends the interests of the parties to the litigation. The certified question must also be dispositive of the appeal. As such, the certification process must not be used as a tool to obtain from our Court declaratory judgments on questions which need not be decided to dispose of the case (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paras. 11‑13).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-34", + "id": "fca-521840-13", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 100–101", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 33–36", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The “secondary intersecting ground” is said by the appellant to be “a distinction between undocumented migrants with disabilities, who are adversely affected by the policy, and those without disabilities, who are similarly disqualified from coverage, but who do not have serious disabilities or related healthcare needs, therefore experiencing a differential effect.” Intersecting grounds can affect the quality of the alleged discrimination and influence the section 15 analysis: See, e.g., Denise Reaume, “Of Pigeonholes and Principles: A reconsideration of discrimination law”, (2002) 40 Osgoode Hall L.J. 113-144 at paragraphs 33-42 and Douglas Kropp, “Categorical Failure: Canada’s Equality Jurisprudence – Changing Notions of Identity and the Legal Subject,” (1997) 23 Queen’s L.J. 201 at paragraph 8. As the appellant has failed to establish her primary distinction, immigration status, and since there are other obstacles to her section 15 claim, discussed below, I need not consider this further.\n\nTherefore, in my view, the appellant has failed to demonstrate that the Order in Council makes a distinction based on any enumerated or analogous ground that is relevant to her situation.", - "current_to": "2011-06-27", + "text": "Hence, this Court retains the authority to reformulate a certified question in a way that more accurately reflects the issue at stake. This will be the case where the question is formulated in “rather general terms” (Li v. Canada (Minister of Citizenship and Immigration) (C.A.) (FCA), [1997] 1 FC 235 (Li) at para. 11; Khan v. Canada (Minister of Citizenship and Immigration) (C.A.), 2001 FCA 345 at para. 17; Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175 at para. 5, Rennie J.A. in dissent but not on that point).\n\nHere, the central issue concerns the defence of duress and its practical availability in Ms. Rodriguez Anzola’s circumstances. Seeking the Court’s view on whether the ID is entitled to consider extenuating circumstances that caused “certain legal defences” not to be practically available to the claimant in the foreign jurisdiction is both too vague and too broad.\n\nTo better reflect the real issue at stake, and account for the particular nature of the defence of duress, the question must, in my view, be limited to whether the ID is entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the claimant in the foreign jurisdiction.\n\nSections 33 to 42 of the Act set out various grounds of inadmissibility to Canada, ranging from national security to public health and misrepresentations. Those found at sections 34 to 37 of the Act are more particularly aimed at “facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism” (Gaytan at para. 36, quoting Sittampalam v. Canada (MCI), 2006 FCA 326 at para. 21).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-35", + "id": "fca-521840-14", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 102–104", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 37–38", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Parenthetically, I would note that if the appellant had prevailed on this point, subsection 15(2) of the Charter might become live. If the immigrants, refugees and others who do receive medical care under the Order in Council constitute a disadvantaged group embraced by the enumerated or analogous grounds, and if the Order in Council is aimed at ameliorating or remedying that group’s condition, the Order in Council would be a “law, program or activity” within the meaning of subsection 15(2). In such a case, the Order in Council would not be found to be discriminatory under subsection 15(1): Kapp, supra at paragraph 41; Lovelace v. Ontario, 2000 SCC 37, [2000] 1 S.C.R. 950. - II -\n\nThe appellant has failed to establish that the Order in Council relies upon, perpetuates or promotes prejudice or stereotyping.\n\nThe appellant has been denied coverage because she did not enter as an applicant for permanent residence, is not a person under immigration jurisdiction, and is not a person for whom the immigration authorities feel responsible. In imposing these eligibility criteria, the Order in Council does not suggest that the appellant and others like her are less capable or less worthy of recognition or value as human beings. The Order in Council does not single out, stigmatize or expose the appellant and others like her to prejudice and stereotyping, nor does it perpetuate any pre-existing prejudice and stereotyping. Indeed, the Order in Council, with its eligibility criteria, denies medical coverage to the vast majority of us, and not just the appellant and others like her. The Order in Council treats the appellant – a non-citizen who has remained in Canada contrary to Canadian immigration law – in the same way as all Canadian citizens, rich or poor, healthy or sick. - III -", - "current_to": "2011-06-27", + "text": "Subsection 36(1) is more specifically concerned with conduct amounting to “serious criminality.” This provision sets out three categories of conduct giving rise to inadmissibility on such ground. The one used against Ms. Rodriguez Anzola is found at paragraph 36(1)(b). It reads as follows: Serious criminality Grande criminalité 36(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36(1) Emportent interdiction de territoire pour grande criminalité les faits suivants : … […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction sous le régime d’une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; … […]\n\nInadmissibility under paragraph 36(1)(b) is established using a test of equivalency developed by the jurisprudence. This test essentially asks whether the acts committed outside Canada and punished there would have been punishable here, in Canada (Li at para. 13). The answer to that question, and I will get back to this later in these reasons, requires a comparison not only of the definitions of the offence committed abroad and of the offence that would have been punishable in Canada, but also of the defences particular to those offences or classes of offences (Li at para. 19). This, in turn, may require evidence “as to how the offence [abroad] had actually been committed” (Li at para. 12, quoting Brannson v. Minister of Employment and Immigration (FCA) [1981] 2 FC 141 at p. 152‑153 (Brannson)).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-36", + "id": "fca-521840-15", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 105–106", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 39–41", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "In my view, the facts and the holding of the Supreme Court in Auton, supra are directly on point and confirm that the Order in Council does not infringe section 15 of the Charter. In Auton, the claimants sought an order that British Columbia’s medicare program should be extended to cover a particular treatment for autism. The denial of coverage was said to be discriminatory under section 15 of the Charter. The Supreme Court refused to order British Columbia to extend its medicare program to cover the treatment.\n\nAt paragraph 41, the Supreme Court held that “[i]t is not open to Parliament…to enact a law whose policy objectives and provisions single out a disadvantaged group for inferior treatment.” I note that the Order in Council does not do this. The Supreme Court then added (at paragraph 41): On the other hand, a legislative choice not to accord a particular benefit absent demonstration of discriminatory purpose, policy or effect…does not give rise to s. 15(1) review. This Court has repeatedly held that the legislature is under no obligation to create a particular benefit. It is free to target the social programs it wishes to fund as a matter of public policy, provided the benefit itself is not conferred in a discriminatory manner: Granovsky v. Canada (Minister of Employment and Immigration), [2000] 1 S.C.R. 703, 2000 SCC 28 at para. 61; Nova Scotia (Attorney General) v. Walsh, [2002] 4 S.C.R. 325, 2002 SCC 83, at para. 55; Hodge, supra, at para. 16.", - "current_to": "2011-06-27", + "text": "Inadmissibility proceedings are governed by sections 44 and 45 of the Act. The authority to conduct inadmissibility hearings is vested in the ID which, by virtue of subsection 162(1) of the Act, possesses in respect of proceedings brought before it under this Act, “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nMs. Rodriguez Anzola contends that to avoid deeming morally innocent people inadmissible to Canada in situations like hers, which would be contrary to the statutory objectives of paragraph 36(1)(b) of the Act, the equivalency analysis ought to include an assessment of the factual circumstances underlying the foreign conviction. Unlike previous inadmissibility cases, she says, she did not make the strategic choice to not raise a defence of duress but was silenced by her fear of the FARC throughout her criminal trial.\n\nThe appellant claims that paragraph 36(1)(b) of the Act only targets those whose morally blameworthy conduct poses a risk to Canadian society. Quoting Li, she contends that the purpose of that provision is “obviously to exclude from Canada persons who have done things abroad, for which they have been convicted there, which Canada regards by its laws as constituting serious misconduct” (Appellant’s Memorandum of Fact and Law at para. 66, quoting Li at para. 17).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-37", + "id": "fca-521840-16", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "para 107", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 42–44", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "On the issue whether the benefit was conferred in a discriminatory manner, the Supreme Court stated (at paragraph 42): Where stereotyping of persons belonging to a group is at issue, assessing whether a statutory definition that excludes a group is discriminatory, as opposed to being the legitimate exercise of legislative power in defining a benefit, involves consideration of the purpose of the legislative scheme which confers the benefit and the overall needs it seeks to meet. If a benefit program excludes a particular group in a way that undercuts the overall purpose of the program, then it is likely to be discriminatory: it amounts to an arbitrary exclusion of a particular group. If, on the other hand, the exclusion is consistent with the overarching purpose and scheme of the legislation, it is unlikely to be discriminatory. Thus, the question is whether the excluded benefit is one that falls within the general scheme of benefits and needs which the legislative scheme is intended to address.", - "current_to": "2011-06-27", + "text": "This, she says, was reaffirmed recently in Gaytan which also underscored the importance of precedents as a legal constraint on how and what an administrative tribunal can lawfully decide. In this respect, the appellant notes that Gaytan relied on the example given in Vavilov of an “immigration tribunal” called upon to determine whether a person’s conduct abroad constitutes a criminal offence under Canadian law for the purposes of sections 35 to 37 of the Act. There, the Supreme Court stated that it “would clearly not be reasonable” for such a tribunal “to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it” (Appellant’s Memorandum of Fact and Law at para. 66, quoting Gaytan at para. 68).\n\nMs. Rodriguez Anzola claims therefore that to comply with Canadian standards of criminal conduct, the “centrality of the defense of duress in criminal law proceed[ing]s”, needed to be recognized by the ID and meaningfully applied to her circumstances (Appellant’s Memorandum of Fact and Law at para. 67).\n\nShe also asserts that although it was rendered in the context of section 37 of the Act (membership in a criminal organization), Gaytan signals that moral blameworthiness is now a central concern in the determination of inadmissibility generally and suggests, based on some other recent decisions, “an evolving obligation for decision-makers to consider the circumstances surrounding the conviction to avoid absurd consequences in which punishment is imposed on morally innocent people for whom inadmissibility advances neither public safety nor international justice” (Appellant’s Memorandum of Fact and Law at para. 77).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-38", + "id": "fca-521840-17", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 108–111", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 45–47", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The exclusion of the appellant from the coverage provided by the Order in Council does not undercut its overall purpose. On the other hand, the exclusion of the appellant from the coverage provided by the Order in Council is consistent with its purpose. The Order in Council is designed to provide emergency care to legal entrants into Canada who are under immigration jurisdiction or for whom immigration authorities feel responsible. Extending these benefits to all foreign nationals in Canada, even those in Canada illegally, stretches the program well beyond its intended purpose. Excluding persons such as the appellant keeps the program within its purpose. In the words of Auton (at paragraph 43), the appellant’s exclusion from the Order in Council “cannot, without more, be viewed as an adverse distinction based on an enumerated ground”; rather, “it is an anticipated feature” of the Order in Council.\n\nSince the Order in Council does not confer benefits in a discriminatory manner, the general rule expressed by the Supreme Court in paragraph 41 of Auton prevails. The government was “under no obligation to create a particular benefit” in the Order in Council and was left “free to target the social programs it [wished] to fund as a matter of public policy.” - IV -\n\nFinally, I query whether the Order in Council, said by the appellant to be discriminatory, is the operative cause of the disadvantage the appellant is encountering. The observations I made in paragraphs 67-73 also apply to the appellant’s section 15 claim.\n\nTherefore, for all of the foregoing reasons, I conclude that the Order in Council does not infringe the appellant’s rights under section 15 of the Charter. G. Justification and remedy", - "current_to": "2011-06-27", + "text": "The respondent disagrees. It contends that the ID Decision is consistent with binding jurisprudence of this Court and should, therefore, be left undisturbed. It submits that the prevailing equivalency test was established nearly 40 years ago by this Court and is still good law despite the passage of time. Quoting Li, the respondent says that under that test, it is not open to the individual concerned to challenge the validity or merits of the conviction abroad. The retrial of the case applying Canadian rules of evidence or procedure is not open to that individual either.\n\nHere, according to the respondent, what the appellant is really seeking is a change in the equivalency test to require the ID to consider the merits of the foreign conviction in order to determine whether the individual concerned had a fair trial or is morally blameworthy. This, the respondent says, is simply not contemplated by the equivalency test and is, in any event, inconsistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nFurthermore, the respondent submits that there is little, if anything, in the statutory scheme to indicate that inadmissibility decision-makers are equipped to look behind a foreign conviction. The approach advocated by the appellant would require these decision-makers to conduct criminal trials or appeals on foreign convictions, a role which would raise a host of obvious practical, evidentiary and other legal concerns. This, it says, cannot have been what Parliament intended that role to be.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-39", + "id": "fca-521840-18", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 112–114", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 48–50", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "On the issue of justification under section 1 of the Charter – whether the Order in Council is a reasonable limit prescribed by law in a free and democratic society – the Federal Court held (at paragraph 94) that if the Order in Council were extended to prove medical coverage to persons illegally in Canada, such as the appellant, Canada would become a “health care safe haven.” The Federal Court mentioned this in the context of the state’s interest that forms part of the analysis of the principles of fundamental justice under section 7.\n\nIn any analysis of justification under section 1 of the Charter in this case, the interests of the state in defending its immigration laws would deserve weight. If the appellant were to prevail in this case and receive medical coverage under the Order in Council without complying with Canada’s immigration laws, others could be expected to come to Canada and do the same. Soon, as the Federal Court warned, Canada could become a health care safe haven, its immigration laws undermined. Many, desperate to reach that safe haven, might fall into the grasp of human smugglers, embarking upon a voyage of destitution and danger, with some never making it to our shores. In the end, the Order in Council – originally envisaged as a humanitarian program to assist a limited class of persons falling within its terms – might have to be scrapped.\n\nIn this case, it is not necessary to comment on justification under section 1 any further. Nor is it necessary to comment on what constitutional remedy might be awarded under subsection 24(1) of the Charter. The appellant’s constitutional challenge fails for want of proof of rights breach. The Order in Council does not infringe sections 7 and 15 of the Charter. H. Concluding comments", - "current_to": "2011-06-27", + "text": "Finally, the respondent contends that Gaytan is of no assistance to Ms. Rodriguez Anzola in that it does not provide the “necessary foundation for the Court to overrule its previous decisions” (Respondent’s Memorandum of Fact and Law at para. 40). This is so, the respondent claims, because the Court’s comments about moral culpability were explicitly made regarding membership assessments under sections 34 and 37 of the Act, and because there is nothing to suggest therein that the Court intended its comments to extend to inadmissibility assessments made under paragraph 36(1)(b).\n\nThere is no doubt, in my view, when one considers Gaytan as well as the particular nature and importance of the defence of duress in Canadian criminal law, that duress is a relevant constraint in determining inadmissibility under paragraph 36(1)(b) of the Act.\n\nAt the hearing of this appeal, the parties, at the invitation of the Court, spent some time discussing whether there was any principled basis not to apply Gaytan to the present matter. If Gaytan is applicable, then this panel is bound to it by virtue of the horizontal stare decisis principle, according to which the Court follows its prior decisions unless it can be shown that the prior decision sought to be followed is manifestly wrong (Miller v. Canada (Attorney General), 2002 FCA 370 at paras. 9-10; R. v. Sullivan, 2022 SCC 19 at paras. 74-79; Feeney v. Canada, 2022 FCA 190 at para. 16; Chen v. Canada, 2023 FCA 146 at paras. 10‑11; Patel v. Dermaspark Products Inc., 2025 FCA 145 at paras. 31‑32).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-37227-40", + "id": "fca-521840-19", "doc_type": "caselaw", - "act_code": "2011 FCA 213", - "act_short": "Toussaint", - "act_name": "Toussaint v. Canada (Attorney General)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Toussaint v. Canada (Attorney General), 2011 FCA 213", - "marginal_note": "paras 115–117", - "heading": "Access to the Interim Federal Health Program for an indigent applicant without immigration status", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 51–53", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Just before the release of these reasons, this Court released its judgment in Toussaint v. Canada (Citizenship and Immigration), 2011 FCA 146. It held that the Minister must consider the appellant’s request for a waiver of fees for her application for permanent residence in Canada.\n\nOn the evidence in this record, and given the reasons set out in paragraphs 35 and 45, above, a decision by the Minister to waive the fees and accept the appellant’s application will not entitle her to medical coverage under the Order in Council. However, depending upon the terms of legislation in Ontario, she may be entitled to health coverage or assistance from Ontario, now or at some point in the future. That will be for others to decide. I. Proposed disposition\n\nI would dismiss the appeal. In the circumstances, the Crown has asked that costs not be awarded against the appellant. Accordingly, I would not award costs. \"David Stratas\" J.A. “I agree Pierre Blais C.J.” “I agree M. Nadon J.A.” FEDERAL COURT OF APPEAL", - "current_to": "2011-06-27", + "text": "Here, there were no serious attempts on the part of the respondent to show that Gaytan is manifestly wrong. The issue, then, becomes whether Gaytan serves as a basis – or a building block – for a positive response to the appeal’s first issue. As I indicated above, there is no doubt that it does.\n\nI have already pointed out the respondent’s position regarding Gaytan. It says that Gaytan concerns solely membership assessments under sections 34 and 37 of the Act and contains no indication that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b). With respect, Gaytan goes further than that.\n\nIn Gaytan, the certified question was indeed specific to paragraph 37(1)(a) of the Act and to whether the ID could consider the defence of duress in determining inadmissibility for being a member of a criminal organization. The appellant in that case, the Minister of Public Safety and Emergency Preparedness (the Minister), was of the view that duress could only be raised before him in the context of an application for ministerial relief under subsection 42.1(1) of the Act.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37227/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-1", + "id": "fca-521840-20", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 1–4", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 54–56", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "On February 18, 1999, Mizanur Rahaman, a 26 year-old citizen of Bangladesh, was refused refugee status by the Convention Refugee Determination Division of the Immigration and Refugee Board. The Board also concluded that the claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act, R.S.C. 1985, c. I-2.\n\nThe principal effects of a \"no credible basis\" finding are that the unsuccessful claimant for refugee status has no right to apply to remain as a member of the Post-Determination Refugee Claimants in Canada (\"PDRCC\") class and is liable to be removed from Canada seven days after the removal order is effective.\n\nThis is an appeal by Mr. Rahaman from a decision dated November 2, 2001 dismissing an application for judicial review of the Board's rejection of his refugee claim and of the \"no credible basis\" finding. The principal issue to be decided is contained in the question that the Application Judge, Teitelbaum J., certified under subsection 83(1): Is a simple finding that a refugee claimant is not a credible witness sufficient to trigger the application of subsection 69.1 (9.1) of the Immigration Act ? Counsel for Mr. Rahaman has limited the appeal to the Board's \"no credible basis\" finding; the dismissal of the application to set aside the Board's rejection of the refugee claim itself is not being appealed. B. THE BOARD'S DECISION\n\nIn his submissions to the Board, Mr. Rahaman claimed that, as a result of his membership of and activities in the youth wing (\"JJD\") of the Bangladesh National Party (\"BNP\"), he had a well-founded fear of persecution in Bangladesh on account of his political opinions.", - "current_to": "2002-03-01", + "text": "The Minister raised several arguments in support of his position. One of them was that importing criminal law notions into the admissibility framework was inconsistent with the scheme of the Act because such notions have no direct application to that framework. While he recognized that the defence of duress was aimed at protecting persons charged with an offence from unconstitutional punishment, that is from punishment for morally involuntary actions, the Minister was claiming that inadmissibility was purely a finding that an individual falls within a class of persons defined in the Act, resulting in inadmissibility not being concerned with moral blameworthiness, with punishment for one’s actions, or with that person’s constitutional protections. According to the Minister, these were crucial distinctions that the Federal Court had failed to account for when dismissing his claim that the ID had no authority to consider the defence of duress when ministerial relief is otherwise available under subsection 42.1(1) of the Act (Gaytan at para. 28).\n\nI pause to note that at the time Gaytan was decided, ministerial relief was – and is still – not available in inadmissibility matters based on section 36 of the Act.\n\nThis argument led the Court to examine the intersection between criminal law and the inadmissibility framework, and in particular sections 34 to 37, which, as indicated previously, have the common purpose of “facilitat[ing] the removal of [non-citizens] who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism” (Gaytan at para. 36).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-2", + "id": "fca-521840-21", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 5", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 57–59", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "More particularly, he alleged that, when participating in protest marches or election campaigns between 1990 and 1996, he had been beaten on several occasions by supporters of the Awami League and of the Jatiya Party, political rivals of the BNP. Awami League supporters, he said, were also responsible for bombing the office of the JJD in the appellant's electoral district and for vandalising a kiosk from which he was selling watches. Further, Mr. Rahaman stated that the police had provided little or nothing by way of protection against these attacks on him and had demanded bribes before being prepared to take any action. Having learned that his name was on a police list of suspected terrorists, and fearing for his life, Mr. Rahaman fled to Canada to claim asylum as a refugee.", - "current_to": "2002-03-01", + "text": "This analysis is based on the Supreme Court’s directions in Vavilov regarding the role of binding precedents on the interpretation of statutory law or the common law, as constraints on how and what an administrative decision-maker can lawfully decide, and their relevance in assessing the reasonableness of administrative decisions. As stated by the Supreme Court, this includes decisions of an “immigration tribunal” called upon to determine what constitutes a criminal offence under Canadian criminal law for the purposes of “sections 35 to 37 of the Act” (Gaytan at para. 68, quoting Vavilov at para. 112).\n\nThis means that Canadian criminal law and how it has been interpreted by the courts is a relevant constraint when those provisions of the Act, not just paragraph 37(1)(a), are being applied. The Court, in Gaytan, concluded that “it would take much clearer language from Parliament to remove the availability of the consideration of duress from the ambit of matters the [ID] might consider in an admissibility proceeding” (Gaytan at para. 74). This statement, responding to the Minister’s argument that importing criminal law notions into the admissibility framework generally was inconsistent with the scheme of the Act, was clearly not limited to inadmissibility proceedings grounded in paragraph 37(1)(a) of the Act.\n\nInterestingly, the Court “pause[d] to stress that it [was] not disputed that duress may be raised before the [ID] in matters where inadmissibility is not subject to ministerial relief” (Gaytan at para. 75, emphasis in original). As indicated, inadmissibility matters based on section 36 of the Act (serious criminality and criminality) are not subject to ministerial relief.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-3", + "id": "fca-521840-22", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 6–7", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 60–62", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The Board was concerned by inconsistencies and implausibilities in Mr. Rahaman's testimony which he could not explain satisfactorily. For instance, the Board found it odd that Mr. Rahaman alleged that he was attacked and denied police protection at a time when the party to which he was affiliated, the BNP, was in power. Further, he could provide the Board with no adequate explanation of how he came to know that he was on a list of suspected terrorists or why, in a letter submitted in evidence to the Board, the local JJD branch of which Mr. Rahaman was an executive member made no mention of problems that its members had had with the police. Moreover, when faced by the Board with documentary evidence of violent clashes between JJD supporters and their rivals, the appellant retracted his testimony denying that such clashes had occurred. The Board also found that the credibility of Mr. Rahaman's evidence was further undermined by the fact that he was apparently willing to remain in Bangladesh during the years of his alleged persecution, when the party for which he worked was in power, but decided to leave when it was defeated, on the ground that his opponents would then seek revenge against him.\n\nHaving considered all the evidence and the submissions, the Board concluded that the claimant was not a Convention refugee. It summarized its conclusion as follows: The panel found a problem with the claimant's general credibility and particularly with his level of implication as he tried to demonstrate in his PIF [scil. Personal Information Form] and testimony. Without further reasons the Board also found that Mr. Rahaman's refugee claim had no credible basis within the meaning of subsection 69.1(9.1) of the Immigration Act. C. THE TRIAL DIVISION'S DECISION", - "current_to": "2002-03-01", + "text": "There, the Court discussed a scenario where the Minister would have initiated inadmissibility proceedings against Mr. Gaytan for having committed a criminal offence overseas, as permitted by paragraph 36(1)(c) of the Act, instead of bringing the matter, as he had done, under paragraph 37(1)(a) of the Act, and said this: According to the Minister’s logic, this would have made duress a relevant consideration because inadmissibility proceedings for serious criminality are not subject to ministerial relief, even though these proceedings would have been based on the same set of facts as the one that led the Minister to raise subsection 37(1)(a) in the case at bar. I agree with the respondent that such an approach, if allow[ed] to stand, would lead to absurd results, as duress would then be available depending solely on which inadmissibility provision the Minister decides to proceed with. Such result cannot not have been intended by Parliament (Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 DLR (4e) 193 at para. 27) (Gaytan at para. 75)\n\nApart from the fact that the respondent is now taking an entirely different position in the present matter, this, in my view, is a clear indication that the Court, in Gaytan, considered criminal law, including duress, to be a relevant constraint beyond the confines of paragraph 37(1)(a).\n\nTherefore, the respondent’s contention that there are no indications in Gaytan that the Court intended its comments to extend to inadmissibility assessments under paragraph 36(1)(b), is incorrect.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-4", - "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "id": "fca-521840-23", + "doc_type": "caselaw", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 8–9", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 63–65", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "On Mr. Rahaman's application for judicial review to have the Board's decision set aside, submissions were made on his behalf in an attempt to undermine the Board's finding that his evidence was not credible. However, after carefully considering the Board's findings in light of the oral and documentary evidence before it, and of the submissions made to him, Teitelbaum J. concluded that it was not unreasonable for the Board to find that the applicant's claim was not credible. He specifically noted the deference afforded by reviewing courts to credibility findings made by the triers of fact, and that documentary evidence before the Board contradicted in significant respects Mr. Rahaman's testimony.\n\nTeitelbaum J. also found that the Board had based its \"no credible basis\" finding primarily on Mr. Rahaman's lack of credibility. In addition, it had relied on the absence of documentary evidence to support his claim to be at risk of persecution and on the fact that some of the documentary evidence contradicted his account of the situation in Bangladesh at the relevant time. D. LEGISLATIVE FRAMEWORK", - "current_to": "2002-03-01", + "text": "Besides, I do not read the ID Decision as saying that duress cannot be considered by the ID when applying the equivalency test in a paragraph 36(1)(b) matter. As was the case in Beltran, on which the ID relied heavily, Ms. Rodriguez Anzola’s claim of duress was dismissed only because the defence of duress, although legally available to her, was not raised in the course of her criminal proceedings in Colombia. There is also case law where other criminal law defences – self-defence for example – were held to be applicable in a paragraph 36(1)(b) matter in circumstances, which I will discuss in more detail below, somewhat similar to those of the present case (Zeine v. Canada (Citizenship and Immigration), 2023 FC 1370 (Zeine)).\n\nThere is no doubt, therefore, based on Gaytan (and on what appears to be the ID’s own position on this point), that the defence of duress is a relevant constraint in a paragraph 36(1)(b) analysis. In Gaytan, the Court stressed that coerced membership could not reasonably have been intended to be captured by sections 34 and 37 of the Act (Gaytan at para. 80) and I see no principled reason to carve out the defence of duress from the operation of the inadmissibility framework when it comes to coerce criminal conduct resulting in a conviction abroad.\n\nThat said, the issue here is whether the ID, when conducting an equivalency analysis, can go so far as to look into the circumstances that caused the legal defence of duress not be practically available.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-5", + "id": "fca-521840-24", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 10", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 66–68", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The following provisions of the Immigration Act are relevant to this appeal. Immigration Act, R.S.C. 1985, c. I-2 49. (1) Subject to subsection (1.1), the execution of a removal order made against a person is stayed ... (c) subject to paragraphs (d) and (f), in any case where a person has been determined by the Refugee Division not to be a Convention refugee or a person's appeal from the order has been dismissed by the Appeal Division, (i) where the person against whom the order was made files an application for leave to commence a judicial review proceeding under the Federal Court Act or signifies in writing to an immigration officer an intention to file such an application, until the application for leave has been heard and disposed of or the time normally limited for filing an application for leave has elapsed and, where leave is granted, until the judicial review proceeding has been heard and disposed of, ... (f) in any case where a person has been determined pursuant to subsection 69.1(9.1) not to have a credible basis for the claim to be a Convention refugee, until seven days have elapsed from the time the order became effective, unless the person agrees that the removal order may be executed before the expiration of that seven day period 69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and 49. (1) Sauf dans les cas mentionnés au paragraphe (1.1), il est sursis à l'exécution d'une mesure de renvoi_: ...", - "current_to": "2002-03-01", + "text": "To answer that question, it is important to first underscore the nature and centrality of the defence of duress in Canadian criminal law. That is so because the equivalency test, as we will see in more detail below, essentially asks whether the acts committed abroad would have been punishable in Canada (Li at para. 13).\n\nThe defence of duress has two sources in Canadian criminal law: section 17 of the Criminal Code, RSC 1985, c. C-46 (the Criminal Code), which essentially excuses a person for a criminal act they commit when threatened or compelled by another person, and the common law. In R. v. Ruzic, 2001 SCC 24 (Ruzic), the Supreme Court held that it is a principle of fundamental justice that “only voluntary conduct – behaviour that is the product of a free will and controlled body, unhindered by external constraints – should attract the penalty and stigma of criminal liability” (Ruzic at para. 47).\n\nAt issue in Ruzic was whether some of the restrictions to the defence of duress set out in section 17 of the Criminal Code – the “immediacy” and “presence” restrictions requiring the accused to show that he/she was compelled to commit the offence under threats of immediate death or bodily harm from a person who is present when the offence is committed – accorded with the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) (the Charter). The Supreme Court ruled that they did not.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-6", + "id": "fca-521840-25", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 10", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 69–70", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "c) sous réserve des alinéas d) et f), dans le cas d'une personne qui s'est vu refuser le statut de réfugié au sens de la Convention par la section du statut ou don't l'appel a été rejeté par la section d'appel_: (i) si l'intéressé présente une demande d'autorisation relative à la présentation d'une demande de contrôle judiciaire aux termes de la Loi sur la Cour fédérale ou notifie par écrit à un agent d'immigration son intention de le faire, jusqu'au prononcé du jugement sur la demande d'autorisation ou la demande de contrôle judiciaire, ou l'expiration du délai normal de demande d'autorisation, selon le cas, ... f) dans le cas où la section du statut a décidé conformément au paragraphe 69.1(9.1) que la revendication n'a pas un minimum de fondement, pendant sept jours à compter du moment où la mesure est devenue exécutoire, à moins que l'intéressé ne consente à l'exécution avant l'expiration de cette période. 69.1(9.1) La décision doit faire état de l'absence de minimum de fondement, lorsque chacun des membres de la section du statut ayant entendu la is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim. revendication conclut que l'intéressé n'est pas un réfugié au sens de la Convention et estime qu'il n'a été présenté à l'audience aucun élément de preuve crédible ou digne de foi sur lequel il aurait pu se fonder pour reconnaître à l'intéressé ce statut.", - "current_to": "2002-03-01", + "text": "While the Supreme Court recognized that the legislator could restrict – and even remove– a criminal defence and that a withdrawal of a criminal defence would “not automatically breach s. 7 of the Charter” (Ruzic at para. 23), it held that the principles of fundamental justice require that criminal liability only result from morally voluntary conduct. As a result, it ruled the impugned restrictions to be in breach of section 7 of the Charter on the ground that those restrictions allowed individuals to be found guilty of involuntary actions (Ruzic at paras. 48 and 55). The Supreme Court further concluded that these restrictions were not saved by section 1 of the Charter (Ruzic at para. 91). In arriving at these conclusions, it underscored that “[t]he treatment of criminal offenders as rational, autonomous and choosing agents [was] a fundamental organizing principle of criminal law” (Ruzic at para. 45).\n\nA few years later in R. v. Ryan, 2013 SCC 3 (Ryan), the Supreme Court underlined the breadth of the constitutional protection enjoyed by the defence of duress when it observed that “important aspects” of its statutory version had been found to be unconstitutional in Ruzic (Ryan at para. 36).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-7", + "id": "fca-521840-26", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 11", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 71–72", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The relevant provisions of the Regulations respecting the PDRCC class follow. Immigration Regulations, 1978, SOR/78-172 2.(1) \"member of the post- determination refugee claimants in Canada class\" means an immigrant in Canada (a) who the Refugee Division has determined on or after February 1, 1993 is not a Convention refugee, other than an immigrant ... (iii) whom the Refugee Division has determined does not have a credible basis for the claim, pursuant to subsection 69.1(9.1) of the Act, ... (c) who if removed to a country to which the immigrant could be removed would be subjected to an objectively identifiable risk, which risk would apply in every part of that country and would not be faced generally by other individuals in or from that country, (i) to the immigrant's life, other than a risk to the immigrant's life that is caused by the inability of that country to provide adequate health or medical care, (ii) of extreme sanctions against the immigrant, or (iii) of inhumane treatment of the immigrant; 2.(1) « demandeur non reconnu du statut de réfugié au Canada » Immigrant au Canada : a) à l'égard duquel la section du statut a décidé, le 1er février 1993 ou après cette date, de ne pas reconnaître le statut de réfugié au sens de la Convention, à l'exclusion d'un immigrant, selon le cas : ... (iii) à l'égard duquel la section du statut a déterminé, en vertu du paragraphe 69.1(9.1) de la Loi, que sa revendication n'a pas un minimum de fondement, ...", - "current_to": "2002-03-01", + "text": "In concluding as it did in Ruzic, the Supreme Court reaffirmed that criminal liability “is founded on the premise that it will be borne only by those persons who knew what they were doing and willed it” (Ruzic at para. 34). In other words, the rationale underlying duress is that of moral involuntariness, a concept entrenched as a principle of fundamental justice (Ryan at para. 23, citing Ruzic at para. 47). This is so crucial that lack of moral voluntariness entitles the offender “to a complete and unqualified acquittal” (Ruzic at para. 43 quoting from Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522).\n\nTherefore, moral involuntariness, which serves as the underlying rationale for duress, engages the most basic, fundamental and organizing principles of criminal liability in Canadian criminal law, meaning that to allow individuals who acted involuntarily to be declared criminally liable violates our Constitution (Ruzic at paras. 45 and 55). Put differently, in Canada, the Charter dictates that a crime committed by someone who acted involuntarily is not punishable and cannot attract the stigma of criminal liability. Put yet another way, duress strikes right at the core of criminal liability and so, legally speaking, the accused must be treated for all Canadian legal purposes as if the accused has never committed a criminal offence.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-8", + "id": "fca-521840-27", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 11–13", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 73–75", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "c) don't le renvoi vers un pays dans lequel il peut être renvoyé l'expose personnellement, en tout lieu de ce pays, à l'un des risques suivants, objectivement identifiable, auquel ne sont pas généralement exposés d'autres individus provenant de ce pays ou s'y trouvant : (i) sa vie est menacée pour des raisons autres que l'incapacité de ce pays de fournir des soins médicaux ou de santé adéquats, (ii) des sanctions excessives peuvent être exercées contre lui, (iii) un traitement inhumain peut lui être infligé.\n\nSubsection 11.4(1) of the Regulations also provides that, subject to certain limitations, persons found to be members of the PDRCC class, and their dependants, are to be granted permanent residence status in Canada. E. ANALYSIS\n\nCounsel for the appellant has argued that in the past this Court has interpreted too broadly the \"no credible basis\" provision in subsection 69.1(9.1). She has invited us to reconsider settled case law and to adopt a narrower interpretation which, she contends, would be more consistent with the scheme of the Act and would bring Canada into line with international norms. More precisely, it is submitted that a person's refugee claim is not supported by \"no credible or trustworthy evidence\" simply because the Board finds that the claimant is not a credible witness and hence concludes that there is no evidence linking the claimant to the alleged persecution on which the claim is based.", - "current_to": "2002-03-01", + "text": "In Ruzic, the Supreme Court stressed that although it does not “negate ordinarily actus reus” (a guilty act) nor does it “ordinarily negate mens rea” (a guilty mind), and rather operates as an excuse, duress, “in its ‛voluntariness’ perspective”, can “more justifiably fall within the ‘principles of fundamental justice’, even after the basic elements of the offence have been established.” This is because, unlike the concept of “moral blamelessness”, duress, in that perspective, can “more easily be constrained” (Ruzic at para. 42).\n\nIt is rational to conclude, therefore, that voluntariness is an “essential ingredient” to any criminal offence in Canada, which means that if a foreign conviction results from the commission of an involuntary act because of duress, then that conviction cannot be regarded as equivalent in Canadian law as lack of voluntariness, cuts to the root of any criminal conviction such that Canada should not recognize a foreign conviction if it occurred in such circumstances.\n\nAgain, in the immigration context, it stands to reason that in determining whether a crime committed outside Canada would have been punishable in Canada for the purposes of paragraph 36(1)(b) of the Act, duress is a relevant constraint given that, if it is established, the person convicted of that crime would be, in Canada, entitled “to a complete and unqualified acquittal”. In other words, the acts underlying the conviction abroad would not be punishable here.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-9", + "id": "fca-521840-28", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 14–15", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 76–79", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The original statutory function of the \"no credible basis\" test was to determine whether a refugee claim could be eliminated at the preliminary stage of a two-stage determination process: subsection 46.01(6), added by Immigration Act, R.S.C. 1985 (4th Supp.), c. 28, s. 14. This process was designed to enable the Board to deal expeditiously with the large numbers of unfounded refugee claims that were anticipated.\n\nHowever, since \"no credible basis\" established a threshold so low that most claimants were able to cross it, the process proved cumbersome, and did not assist the Board to handle its case load in an efficient and expeditious manner. Accordingly, it was abandoned in February 1993 when subsection 46.01(6), was repealed by R.S.C. 1992, c. 49. As a result, inland refugee claimants no longer had to prove that their claims had a credible basis before gaining access to a full determination by the Board. The amendments that came into effect in 1993 also added the present subsection 69.1(9.1), thereby conferring on the \"no credible basis\" test a new function in the statutory scheme, namely to restrict the post-determination rights of unsuccessful claimants whose claims were found to be supported by no credible evidence.", - "current_to": "2002-03-01", + "text": "Does that constraint extend to requiring the ID to look into the circumstances that led the individual concerned not to raise duress when it was otherwise legally available in the country where the conviction occurred? I believe it does because, ultimately, being deprived of the defence of duress due to some extraneous circumstances could amount to not having access to that defence at all.\n\nTherefore, the centrality of the defence of duress on the concept of criminal liability in Canadian law makes it incumbent on the ID to consider the circumstances that prevented the individual concerned from raising that defence in instances where it was otherwise legally available.\n\nIn my opinion, this view does not overrule this Court’s previous jurisprudence on inadmissibility for serious criminality and is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nAlthough it precludes treating an inadmissibility proceeding as a retrial of the merits or validity of the foreign conviction, the jurisprudence of this Court on paragraph 36(1)(b) of the Act does not exclude factual considerations beyond the existence of a conviction in all cases, including the facts underlying the foreign conviction for the purposes of determining whether those facts would have led to a conviction in Canada. In fact, the Court cautioned against the equivalency test being reduced to a universal blanket, meaning that in some instances, there will necessarily need to be some consideration for unique circumstances.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-10", + "id": "fca-521840-29", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 16", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "para 80", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (C.A.) contains the most authoritative exposition of the \"no credible basis\" test when it performed the function of screening out claims at the preliminary stage of the determination process. Writing for the Court, MacGuigan J.A. concluded (at page 244) that Parliament had intended subsection 46.01(6) to screen out more than clearly \"bogus claims\": The concept of \"credible evidence\" is not, of course, the same as that of the credibility of the applicant, but it is obvious that where the only evidence before a tribunal linking the applicant to his claim is that of the applicant himself (in addition, perhaps, to \"country reports\" from which nothing about the applicant's claim can be directly deduced), a tribunal's perception that he is not a credible witness effectively amounts to a finding that there is no credible evidence on which the second-level tribunal could allow his claim. I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient.", - "current_to": "2002-03-01", + "text": "In Brannson, Urie J.A., in concurring reasons, expressly stated the need for additional facts “at least in circumstances where the scope of the [Canadian] offence is narrower in compass than that of in the foreign jurisdiction” and that, therefore, a blanket procedure should not be adopted for all instances where an immigration tribunal is called upon to determine whether the offence committed abroad would constitute an offence if committed in Canada (Brannson p. 145) (My emphasis).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-11", + "id": "fca-521840-30", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 17–18", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 81–82", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Subsequently, the phrase \"no credible basis\" as it appears in subsection 69.1(9.1) has been interpreted in accordance with Sheikh, supra. Thus, in Mathiyabaranam v. Canada (Minister of Citizenship and Immigration) (1997), 41 Imm. L.R. (2d) 197, at paragraph 12 (F.C.A.), Linden J.A. cited Sheikh, supra, for the proposition that, \"while credible basis and credibility are not identical, they are clearly connected\". At the very least, Mathiyabaranam, supra, is an implicit endorsement of the applicability of Sheikh, supra, in the context of subsection 69.1(9.1).\n\nJudges of the Trial Division have expressly held that Sheikh, supra, is the applicable approach to the words \"no credible basis\" in subsection 69.1(9.1): see, for example, Hernandez v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 607 (T.D.); Nizeyimana v. Canada (Minister of Citizenship and Immigration), 2001 FCT 259; Geng v. Canada (Minister of Citizenship and Immigration), 2001 FCT 275.", - "current_to": "2002-03-01", + "text": "In Brannson, the Court found that it was inappropriate to prevent the applicant from testifying about the facts of his conviction in the United States (for having used the mail to promote a fraudulent scheme), the immigration tribunal in that case having ruled that such evidence was irrelevant. For Urie J.A., the issue in that case concerned the extent to which the immigration tribunal was “entitled to flesh out the evidence relating to the United States offence by ascertaining how the offence was committed by the applicant in order to ascertain whether the offence committed would constitute an offence in Canada” (Brannson p. 143). Urie J.A. concluded as follows: It is not sufficient [. . .] for the Adjudicator to simply look at the documentary evidence relating to a conviction for an offence under the foreign law. There must be some evidence to show firstly that the essential ingredients constituting the offence in Canada include the essential ingredients constituting the offence in the United States. Secondly, there should be evidence that the circumstances resulting in the charge, count, indictment or other document of a similar nature, used in initiating the criminal proceeding in the United States, had they arisen in Canada, would constitute an offence that might be punishable by way of indictment in Canada. (Brannson p. 144)\n\nAlthough it was not its role to inquire about the validity or merits of the conviction abroad, the immigration tribunal, according to Urie J.A., had, by contrast, “the obligation to ensure that the conviction in issue arose from acts which were encompassed by the provisions [of the Canadian offence]” (Brannson p. 145).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-12", + "id": "fca-521840-31", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 19–20", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 83–85", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Some Judges have noted, however, that because of the change in statutory context Sheikh, supra, should not be read broadly so as to relieve the Board of the duty to base a \"no credible basis\" finding on the totality of the evidence before it. This caution was well articulated in Foyet v. Canada (Minister of Citizenship and Immigration) (2000), 187 F.T.R. 181, on which counsel for the appellant placed considerable weight. In this case (supra, at paragraph 19), Denault J. summarised his understanding of the law as follows: In my view, what Sheikh, tells us is that when the only evidence linking the applicant to the harm he or she alleges is found in the claimant's own testimony and the claimant is found to be not credible, the Refugee Division may, after examining the documentary evidence make a general finding that there is no credible basis for the claim. In cases where there is independent and credible documentary evidence, however, the panel may not make a no credible basis finding. In my view, this is an accurate statement of the law as it has been understood to date, subject to one qualification: in order to preclude a \"no credible basis\" finding, the \"independent and credible documentary evidence\" to which Denault J. refers must have been capable of supporting a positive determination of the refugee claim.\n\nThe case law to date would therefore seem to be solidly against the position taken on behalf of Mr. Rahaman in this appeal, namely that the Board may not make a \"no credible basis\" finding if a claim is based on a Convention ground and there is evidence that persecution of the kind alleged has in fact occurred in the country in question.", - "current_to": "2002-03-01", + "text": "Ryan J.A., with whom Kelly D.J. concurred, accepted that in instances where the definition of the foreign offence is broader than, but could contain, the definition of a Canadian offence “it may well be open to lead evidence of the particulars of the offence of which the person under inquiry was convicted” (Brannson p. 153). As we have seen, there are indications that Urie J.A. considered that the leading of such evidence would be relevant or required in other instances.\n\nIn Hill v. Canada (Minister of Employment and Immigration), (FCA) (1987) 1 Imm. L.R. (2d) 1 (Hill), the issue was whether the elements of the crime of theft in Texas were equivalent to those in the Criminal Code, particularly in light of the requirement, in the Canadian definition, that the taking of the property be “without color of right”. The evidence upon which the immigration tribunal in that case had made its finding of inadmissibility was “extremely sparse” (Hill p. 4).\n\nHugessen J.A. (MacGuigan J.A. concurring), identified two fatal flaws with this evidence. First, it was completely lacking as to what was meant in the Texas statute by “theft”. Second, it did not allow to determine whether Mr. Hill might have asserted a colour of right to his taking of the alleged stolen property, and, therefore, to determine whether the offence of which he was convicted in Texas would necessarily, if committed in Canada, have constituted an offence to the Criminal Code provision being compared with (Hill p. 5-6).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-13", + "id": "fca-521840-32", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 21–22", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 86–87", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Nonetheless, counsel submits that we should reconsider the existing jurisprudence on subsection 69.1(9.1) because it is not consistent with Parliament's intention in enacting it. Instead, she argues, a claim should only be found to lack a credible basis if it would be characterised as \"manifestly unfounded\", the test used in international instruments for identifying both claims that may be rejected through a more summary determination procedure than that normally applicable to refugee claims and claimants whose post-determination rights may be truncated in order to expedite their removal. Counsel puts her argument in two ways. (a) The statutory coherence argument\n\nCounsel argues that, to apply the interpretation of the \"no credible basis\" test in Sheikh, supra, to subsection 69.1(9.1) subverts the intention of Parliament by converting into the normal what was intended to be exceptional. The argument is that the statutory scheme established by the Immigration Act contemplates that, in the normal course, an unsuccessful refugee claimant will be entitled to apply to be recognized as a member of the PDRCC class, and to remain in Canada until the final determination of that application and the disposition of any legal proceedings arising either from that application or from the rejection of the refugee claim. A finding of \"no credible basis\", which deprives an unsuccessful claimant of these rights, is intended only for the unusual case where the claim is so devoid of merit as to constitute an abuse of the refugee determination system.", - "current_to": "2002-03-01", + "text": "In concurring reasons, with which MacGuigan J.A. also concurred, Urie J.A., set out his views as to how to perform the equivalency analysis: [F]irst, by a comparison of the precise wording in each statute both through documents and, if available, through the evidence of an expert or experts in the foreign law and determining therefrom the essential ingredients of the respective offences; two, by examining the evidence adduced before the adjudicator, both oral and documentary, to ascertain whether or not that evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings, whether precisely described in the initiating documents or in the statutory provisions in the same words or not; and three, by a combination of one and two. (Hill p. 9)\n\nThat test was applied in Li, the Court noting that it had been approved in cases subsequent to Hill (Li at para. 13). The Court also noted that the second way of establishing equivalence, the one that permits adducing evidence as to the circumstances of the acts committed abroad, “point[ed] up to the fundamental test of equivalence: would the acts committed abroad and punished there have been punishable here?” (Li at para. 13). Li also clarified that a comparison of the “essential elements” of the foreign and Canadian offences “requires a comparison of the definitions of those offences including defences particular to those offences or those classes of offences” (Li at para. 19).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-14", + "id": "fca-521840-33", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 23–24", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 88–89", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "However, it is argued, most refugee claims fail because the Board does not believe the claimant's testimony. Therefore, if a \"no credible basis\" finding can be made when the Board does not find the claimant credible, most unsuccessful refugee claimants will not have the right either to make a PDRCC claim, or to remain in Canada pending the final disposition of an application for judicial review of the Board's dismissal of their refugee claim. The result is that most unsuccessful claimants will not have the benefit of the rights that Parliament intended. Despite the absence of evidence in the record before us on the percentage of refugee claims that are rejected because the claimant is not found to be credible, I am prepared to assume for the purpose of this appeal that they constitute a significant percentage of all unsuccessful refugee claims.\n\nI do not, of course, take issue with that regularly approved principle of statutory interpretation formulated by E.A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths Ltd., 1983), at page 87, that \"... the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.\" Nonetheless, in my opinion, counsel's argument cannot succeed.", - "current_to": "2002-03-01", + "text": "According to the Court, it was “obvious that persons could be convicted of the [foreign] offence in circumstances where they would not be guilty of an offence in Canada, given the defence available here [...]” arising out of the narrower meaning of the Canadian offense (Li at para. 20). In the absence of any evidence pointing to the fact that what led to the foreign conviction would have constituted an offence within the narrower Canadian Criminal Code provisions, the Court concluded that there was no equivalency between the two offences (Li at para. 21).\n\nSome general threads can be pulled from this Court’s jurisprudence: a)A bare legal equivalence is not always sufficient to establish inadmissibility; b)It is neither possible nor desirable to reduce the equivalency test to a universal blanket applicable in every case; c)At a minimum, where a Canadian offence is more narrowly defined than a foreign offence, the decision-maker is entitled to inquire into the facts to determine whether the acts committed abroad fit into the elements of the Canadian offence; d)Put differently, consideration of the facts underlying a foreign conviction is not precluded in all cases and is required in some; e)It is the “essential ingredients” of the Canadian and foreign offences that must be compared, which include the legal availability of defences particular to the crime at issue; and f)Challenging the validity or merits of the foreign conviction is no response to an inadmissibility proceeding.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-15", + "id": "fca-521840-34", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 25–27", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 90–92", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "First, a word or phrase is presumed to have the same meaning when used more than once in the same statute: R. Sullivan ed., Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths Ltd., 1994), at pages 163-64. This presumption is particularly persuasive when, as here, the phrase is part of a longer text, and both phrase and text appear in different provisions of the statute. In my view, the presumption is not significantly weakened by the fact that the phrase \"no credible basis\" did not appear in provisions of the Immigration Act that were in force at the same time. As I have already noted, the former subsection 46.01(6) was repealed at the same time that subsection 69.1(9.1) was added to the Act.\n\nSecond, I cannot ignore the fact that in Mathiyabaranam, supra, this Court treated the interpretation in Sheikh, supra, of \"no credible basis\" in subsection 46.01(6) as equally applicable to the same words in subsection 69.1(9.1), a view consistently taken in the Trial Division. Only in exceptional circumstances should a well established interpretation of a statutory provision be abandoned.\n\nThird, I do not accept counsel's submission that Sheikh, supra, equates \"no credible basis\" with a finding that the claimant's testimony is not credible. In particular, it is expressly stated in that decision that the Board is to have regard to all the evidence before it: the claimant's oral submissions and any documentary evidence or other oral testimony. See, for example, Nizeyimana, supra; Barua v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1744 (T.D.); Tingombay v. Canada (Minister of Citizenship and Immigration), 2001 FCT 752.", - "current_to": "2002-03-01", + "text": "Although it precludes treating an inadmissibility proceeding like an appeal of the foreign conviction, the jurisprudence on paragraph 36(1)(b) of the Act confirms that the equivalency test should be treated as flexible enough to account for factual circumstances. In other words, it allows enough space to give some consideration for the unique circumstances of each case in determining equivalency.\n\nTransposed to the present matter, the fundamental question, therefore, is whether, when one considers both the essential “ingredients” of the Colombian and Canadian offences, the acts committed by the appellant in Colombia and for which she was punished there, would have been punishable here, taking into account the facts underlying the Colombian conviction.\n\nAs I said earlier, duress and moral involuntariness are centrally important to Canadian criminal law. One could say that they are “essential ingredients” to any criminal offence in Canada. Again, in Gaytan, this Court considered duress in the context of inadmissibility proceedings and found that “Parliament did not intend membership to extend to those who were forcibly recruited by a terrorist or a criminal organization and performed acts consistent with the goals of such an organization while under duress” (Gaytan at para. 79), and the respondent has failed to provide a principled reason not to apply this reasoning to the context of serious criminality where the issue is that the individual was under duress both during the commission of the crime and during the subsequent legal proceedings.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-16", + "id": "fca-521840-35", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 28–30", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 93–95", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Moreover, the wording of subsection 69.1(9.1) provides that a \"no credible basis\" finding may only be made if there was no credible or trustworthy evidence on which the Board member could have upheld the claim. In other words, the Board member may not make a \"no credible basis\" finding if there is credible or trustworthy evidence before it that is capable of enabling the Board to uphold the claim, even if, taking the evidence as a whole, the Board decides that the claim is not established.\n\nHowever, as MacGuigan J.A. acknowledged in Sheikh, supra, in fact the claimant's oral testimony will often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim. Because they are not claimant-specific, country reports alone are normally not a sufficient basis on which the Board can uphold a claim.\n\nOn the other hand, the existence of some credible or trustworthy evidence will not preclude a \"no credible basis\" finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case at bar, Teitelbaum J. upheld the \"no credible basis\" finding, even though he concluded that, contrary to the Board's finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board's rejection of his claim.", - "current_to": "2002-03-01", + "text": "Therefore, if its existence is proven in the circumstances of this case, duress would strike at the root of the Colombian conviction such that for all Canadian legal purposes, including immigration, it would have to be regarded as a nullity, even after the basic elements of the offence (actus reus and means rea) have been established.\n\nThe jurisprudence of this Court on equivalence allows for such flexibility.\n\nThe recent decision of the Federal Court in Zeine is consistent with that approach. In that case, although there was no evidence that self-defence was raised at trial in the foreign jurisdiction – or could not have been raised due to extraneous circumstances – the Federal Court held that the “immigration tribunal” – an immigration officer in that case – had failed to consider the potential defence of self-defence, vitiating thereby the reasonableness of the officer’s decision. The Federal Court judge stated that the issue of self-defence had sufficiently been raised in the material before the officer to require consideration such that the foreign offence would not, if committed in Canada, be punishable here (Zeine at paras. 29‑30). It concluded as follows: [33] Mr. Zeine could certainly have raised the issue of self-defence more clearly in his submissions. However, I conclude that the factual context of Mr. Zeine’s conviction and his explanation regarding that context were such that the officer had to consider self‑defence in assessing whether the facts that were proven in the Lebanese criminal case met the essential elements of section 267 of the Criminal Code: see Garcia v Canada (Citizenship and Immigration), 2021 FC 141 at paras 26–28.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-17", + "id": "fca-521840-36", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 31–32", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 96–98", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Fourth, while the adverse consequences of a \"no credible basis\" finding under subsection 69.1(9.1) are undoubtedly significant for the person concerned, they need to be considered in context. Thus, although those against whom a \"no credible basis\" finding is made do not have a statutory right to an automatic stay of their removal while they exhaust their legal and administrative recourse, if they seek leave to apply for judicial review of the Board's dismissal of their refugee claim, they may ask the Court for a stay pending the Court's disposition of their application.\n\nFurther, although not permitted to apply for exemption from removal as a member of the PDRCC class, an unsuccessful refugee claimant whose claim has been found to have no credible basis may apply to remain in Canada on humanitarian and compassionate grounds in the exercise of the Minister's discretion under subsection 114(2). The existence of an objectively identifiable risk facing the applicant, if returned, is a recognized ground for a positive exercise of discretion: Immigration Canada, Immigration Manual: Inland Processing. looseleaf (Immigration Information Centre; 1991), chapter 5, section 8.8. However, a removal will generally not be stayed pending the completion of a subsection 114(2) application, although a person whose application is based on a risk of persecution in his or her country of origin will normally not be removed if the claimant is found likely to be at serious risk.", - "current_to": "2002-03-01", + "text": "The respondent insists that the equivalency analysis does not allow the ID to reconsider the validity or merits of the foreign conviction or to embark on “finicky evaluations” of the rules governing the legal process in the foreign jurisdiction, which, according to the respondent, is what Ms. Rodriguez Anzola is ultimately seeking.\n\nWith respect, requiring the ID, for equivalency purposes, to consider whether the defence of duress was practically (or reasonably) available, does not amount to requiring the ID to reconsider the validity or merits of the foreign conviction or to proceed with “finicky evaluations” of the rules governing the legal process in the foreign jurisdiction. Again, the ID’s task is to determine whether the offence committed abroad would, if committed in Canada, be punishable under Canadian law. As we have seen in the case law, an offence may very well be punishable abroad, but not in Canada. Such a finding does not require reconsideration of the merits or validity of the conviction abroad, let alone reconsideration on the basis of the Canadian standards of procedure or evidence.\n\nBesides, the appellant is not suggesting that the ID be entitled to retry the foreign case. She rather claims, as I understand it, that the ID be permitted to consider evidence about duress both during the commission of the crime she was charged with and during the subsequent legal proceedings, in order to determine, even after the basic elements of the offence have been established, whether her circumstances were egregious enough to regard her conviction in Colombia as never having happened.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-18", + "id": "fca-521840-37", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 33–34", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 99–103", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "In other words, while a \"no credible basis\" finding undoubtedly exposes the person concerned to a relatively expeditious removal, removal in fact may be delayed. Legal and administrative safeguards against the removal of those likely to face persecution on their refoulement do exist, even though they are not as favourable as those available to unsuccessful refugee claimants in respect of whom each member of the Board has not made a \"no credible basis\" finding under subsection 69.1(9.1). (b) The international law argument\n\nCounsel for Mr. Rahaman argues that compliance with international norms requires that unsuccessful refugee claimants not be subject to refoulement pending the disposition of legal proceedings brought to review the rejection of their refugee claims, unless their claims are manifestly unfounded. For the Court to interpret subsection 69.1(9.1) to include claims that cannot be said to be manifestly unfounded would put Canada out of line with international legal norms. Only when faced with completely unequivocal statutory language should the Court conclude that an Act of Parliament derogates from international norms respecting the protection of human rights. Sheikh, supra, is silent on this point, perhaps because the judicial recognition of the importance of international norms in the interpretation of statutory powers, and the review of their exercise, is a relatively recent phenomenon in Canada. (i) statutory interpretation: the international context", - "current_to": "2002-03-01", + "text": "As I have indicated, I believe the equivalency test, as it has been applied so far, allows for this type of inquiry given the critical criminal liability interests at stake. I believe as well that this view is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act.\n\nAs is now well-established, although an administrative decision-maker need not “engage in a formalistic statutory interpretation exercise in every case”, its decision must be consistent with the “modern principle” of statutory interpretation, which focuses on the text, context, and purpose of the statutory provision (Mason at para. 69, quoting Vavilov at paras. 118-119).\n\nHere, the ID did not engage in a statutory interpretation exercise of paragraph 36(1)(b). Its decision is essentially based on what it believes to be jurisprudential constraints.\n\nThe respondent contends that neither the text, context or purpose of paragraph 36(1)(b) allows for consideration of the validity or merits of the foreign conviction. However, as indicated previously, this is not the point.\n\nThe point is whether a text, context and purpose analysis of paragraph 36(1)(b) supports an interpretation that would allow the ID, in an equivalency analysis, to look into the circumstances, including those throughout the criminal trial, that caused the legal defence of duress not be practically available with the consequence that the foreign conviction would be regarded, given the centrality of the defence of duress to the concept of criminal liability in Canada, as a nullity for all Canadian legal purposes, including immigration.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-19", + "id": "fca-521840-38", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 35–36", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 104–106", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Nowadays, there is no doubt that, even when not incorporated by Act of Parliament into Canadian law, international norms are part of the context within which domestic statutes are to be interpreted: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paragraph 70. Similarly, in Suresh v. Canada, 2002 SCC 1, at paragraph 59, when referring to the Immigration Act the Supreme Court of Canada stated: \"A complete understanding of the Act ... requires consideration of the international perspective.\" It was also said in Suresh, supra, at paragraph 60, that the reason for examining the international dimension is not to determine if Canada is in breach of its international legal obligations as such, but to use prevailing international norms to inform the interpretation of a provision of domestic law, in that case section 7 of the Canadian Charter of Rights and Freedoms.\n\nOf course, the weight to be afforded to international norms that have not been incorporated by statute into Canadian law will depend on all the circumstances of the case, including the legal authoritativeness of their legal source, their specificity and, in the case of customary international law, the uniformity of state practice. Moreover, although subject to the restraints imposed by the Constitution Acts 1867 to 1982, including the Charter, Parliament is the ultimate source of law in our system of law and government. Hence, effect cannot be given to unincorporated international norms that are inconsistent with the clear provisions of an Act of Parliament. Were it otherwise, the principle that treaties and other international norms only become part of the domestic law of Canada if enacted by Parliament would be undermined.", - "current_to": "2002-03-01", + "text": "Paragraph 36(1)(b) operates as a ground of inadmissibility where a permanent resident or foreign national was convicted of an offence outside Canada which, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. At the level of text, neither paragraph 36(1)(b) nor any other provision of the Act clearly specifies the precise terms of equivalency that are required to sustain a finding of inadmissibility, including the evidence or the list of factors the ID is entitled to consider. In particular, nothing in the text of the Act directs immigration officials or tribunals to only consider the elements of the foreign and Canadian offences in all circumstances or precludes consideration of extraneous circumstances in all instances.\n\nThis is probably so because it is highly unlikely that foreign jurisdictions would define their crimes in ways that are equivalent to the manner in which crimes are defined in Canada. This is why this Court has recognized that at least in instances where the elements of a Canadian offence are narrower than its foreign counterpart, the respondent must show that the facts that formed the basis of the conviction abroad fit the narrower Canadian elements.\n\nIt is this opening – that the text of paragraph 36(1)(b) does not preclude the ID from considering the facts underlying the foreign conviction in all circumstances – which, in my view, allows this Court to consider whether the ID is entitled, when conducting an equivalency analysis, to consider evidence of duress throughout the criminal trial. If the text of the Act does not provide a clear answer to that question, context and purpose do.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-20", + "id": "fca-521840-39", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 37–39", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 107–110", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The question before us is whether the interpretation of subsection 69.1(9.1) in Sheikh, supra, authorizes the removal of unsuccessful refugee claimants contrary to international norms. This will occur if a claim supported by \"no credible or trustworthy evidence\" is not also \"manifestly unfounded\" as that phrase is understood in the international community. (ii) a right to remain pending an appeal?\n\nThe first step to answering the above question is to ask if international norms require states to ensure that an unsuccessful refugee claimant is not returned to the country of alleged persecution pending the final disposition of a legal challenge to the dismissal of the refugee claim. This question is not expressly addressed in the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 150 (the Geneva Convention), or in the 1967 Protocol Relating to the Status of Refugees, 31 January 1967, 606 U.N.T.S. 267, which are the most authoritative legal texts that define the status of refugee and establish the key principles of protection, including non-refoulement.\n\nHowever, in Article 35 of the Geneva Convention the signatory states undertake to co-operate with the Office of the United Nations High Commissioner for Refugees (UNHCR) in the performance of its functions and, in particular, to facilitate the discharge of its duty of supervising the application of the Convention. Accordingly, considerable weight should be given to recommendations of the Executive Committee of the High Commissioner's Programme on issues relating to refugee determination and protection that are designed to go some way to fill the procedural void in the Convention itself.", - "current_to": "2002-03-01", + "text": "The respondent argues that legislative changes brought to the Act’s inadmissibility framework in 1976 supports its position that from that point on, Parliament no longer intended immigration tribunals to consider the merits of a foreign conviction or the moral blameworthiness of the acts underlying the conviction. Through these amendments, Parliament moved away from the “vague and unsatisfactory” notion of “crimes involving moral turpitude” for an objective criterion based on Canada’s Criminal Code (Respondent’s Memorandum of Fact and Law at paras. 56-58).\n\nHowever, the legislative history of paragraph 36(1)(b) does not assist the respondent as the changes made to that provision do not speak to whether the facts underlying the foreign conviction are allowed to be considered in certain circumstances. As we have seen, according to the jurisprudence of this Court, they do sometimes matter.\n\nThe respondent also claims, as a matter of context, that foreign nationals do not have an unqualified right to enter and remain Canada, meaning that Parliament has the right to impose conditions upon which non-citizens will be permitted to enter and remain in Canada, one such condition being that they will be denied entering or remaining in Canada if convicted abroad of certain criminal offences.\n\nAgain, while it is correct to say that non-citizens do not have an unqualified right to enter and remain Canada, I fail to see how this argument assists in a meaningful way in determining whether paragraph 36(1)(b) precludes the ID from considering the facts underlying the foreign conviction in all circumstances.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-21", + "id": "fca-521840-40", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 40–41", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 111–113", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "The Executive Committee has recommended that unsuccessful refugee claimants be given a reasonable opportunity to appeal from a refusal to recognize their claim, and be permitted to remain in the country of refuge pending appeal, before they are returned to their home country where they may be subject to identifiable risk: see UNHCR, Handbook on Procedures and Criteria for Determining Refugee Status (Geneva: 1998), UN GA, 32 Sess., UN. Doc A/32/12/Add.1 (1977). Similarly, in 1995 the Council of the European Union adopted the Resolution on Minimum Guarantees for Asylum Procedures (\"EU Council Resolution\"), which provides in paragraph 17 that as a general rule asylum seekers should be permitted to remain in the territory of the Member State where protection is being sought until the refusal of the claim has been taken on appeal. See also James C. Hathaway and Anne K. Cusick, \"Refugee Rights Are Not Negotiable\" (2000), Georgetown Imm. L.J. 481, at page 496.\n\nIn my opinion, this material indicates the existence of an international norm that signatory states to the Geneva Convention should normally permit refugee claimants to remain in their territory until they have exhausted any right of appeal or review. This is what paragraph 49(1)(c) of the Immigration Act provides.", - "current_to": "2002-03-01", + "text": "The respondent insists that its interpretation of paragraph 36(1)(b) finds support in the fact that Parliament created two approaches to determine inadmissibility for serious criminality or criminality, one based on whether a conviction exists, which is the case of that provision, the other based on the commission of specified acts, which allows for assessment of the purported crimes committed.\n\nI believe that in adopting the first approach, Parliament intended to provide a sort of a “bright line” test that would not contemplate a retrial of the facts. This is most obviously demonstrated by the fact that paragraph 36(1)(c) is a related provision that specifically contemplates consideration of criminal acts as opposed to criminal convictions. Paragraph 36(1)(c) requires that the respondent establish reasonable grounds to believe that certain facts exist. Under paragraph 36(1)(b), the intention must have been that the respondent be entitled to rely on the conviction itself as factual proof of the criminal acts committed abroad.\n\nUndoubtedly, Parliament envisioned that proving inadmissibility under paragraph 36(1)(b) would not require a retrial of the facts underlying the foreign conviction. But, again, this is not what is in issue here, and this is not what the appellant is asking for. She does recognize that she committed the acts that led to her conviction. However, she contends that despite her conviction, there is good reason, in the form of persistent duress, not to regard her as a serious criminal.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-22", + "id": "fca-521840-41", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 42–43", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 114–115", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "However, it is also recognized in international instruments that states may derogate from the normal rule by providing more limited review and appeal rights to unsuccessful claimants whose claims have been held to be \"manifestly unfounded\". Thus, the Executive Committee has indicated a consensus on the problem created by the increase in applicants who \"clearly have no valid claim\" or whose claims are \"manifestly unfounded\", and that states must create separate national procedures to address this problem: Conclusion No. 28 (XXXIII) 1982, UN UNHCR, 32d Sess., UN Doc. EC/SCP/22/Rev.1 (1982), Conclusion No.30 (XXXIV) 1983, UN Doc., Report on the 34th Session of The Executive Committee of the High Commissioner's Programme, UN GAOR, 34th Sess., A/AC.96/631 (1993), Conclusion No. 87 (L) 1999, at paragraph (k).\n\nConsequently, the Executive Committee has recommended (Conclusion No. 30, supra, at paragraph (e)(iii)) that, while refugee claimants must be given an opportunity to have a negative decision reviewed before their forcible removal, \"this review possibility can be more simplified than that available in the case of rejected applications which are not considered manifestly unfounded or abusive.\" See also UN Global Consultations on International Protection, 2d Meeting, UN Doc. EC/GC/01/12 (2001) (\"Global Consultations\"), at paragraph 32. The EU Council Resolution provides that a person whose claim is held to be manifestly unfounded should at least be entitled to request the body reviewing the refusal of the claim to stay the claimant's removal until the review is complete.", - "current_to": "2002-03-01", + "text": "The respondent invokes the Act’s objectives in maintaining the security of Canadian society and promoting security by denying access to Canadian territory to persons who are criminals or security risks (paragraphs 3(1)(h) and (i)), in support of its interpretation of paragraph 36(1)(b). However, the Act is also aimed at granting, “as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution”, and at establishing “fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings” (paragraphs 3(2)(c) and (e)).\n\nFrom a statutory objectives’ standpoint, therefore, while protecting Canadians is important, so too is maintaining procedural fairness and Canada’s humanitarian posture. Hence, allowing the ID to consider whether a non-citizen is truly a serious criminal, in the sense that their conviction abroad is to be regarded, in Canadian law, as a nullity, does not substantially render Canada less safe, at least on the record presented. In the same vein, bluntly denying the opportunity to present evidence on the underlying circumstances of a criminal conviction abroad in all circumstances, with no regard for any context, would not be procedurally fair nor would it conform with Canada’s humanitarian posture.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-23", + "id": "fca-521840-42", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 44–45", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 116–119", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "In my opinion, the restricted post-determination rights afforded by the Immigration Act to those whose claims are found to have no credible basis are not inconsistent with international norms as evidenced by the above instruments. \"No credible basis\" claimants may apply for judicial review and request the Court to grant a stay pending the disposition of the application, and those found to be at serious risk in their country of origin will not be removed. A problem arises, however, if a claim can fall within this category, but is not \"manifestly unfounded\" as that term is commonly understood in the international community. As I have already noted, a person whose claim is not \"manifestly unfounded\" should be permitted to remain pending the disposition of the appeal or review. (iii) \"manifestly unfounded or clearly abusive\"\n\nThere is no doubt that some international instruments appear to give a very restricted meaning to the term \"manifestly unfounded\". For example, paragraph (d) of Conclusion 30, supra, defines claims that are \"manifestly unfounded\" as \"those which are clearly fraudulent or not related to the criteria for the granting of refugee status laid down in the 1951 ... Convention ... nor to any other criteria justifying the granting of asylum\".", - "current_to": "2002-03-01", + "text": "Again, here, the appellant is not seeking a retrial of the charges she faced in Colombia. She admits having committed the acts she was charged for, albeit under duress. She rather says that she was unable to raise duress in the course of her criminal proceedings there and that, for this reason, she should not be regarded as a serious criminal within the ambit of the Act and of Canadian criminal law generally.\n\nIn my view, this contention is different enough that it is not obvious from the text, context and purpose of paragraph 36(1)(b) of the Act that such consideration is precluded, especially in light of the fact that if duress is successfully established, her conviction would have to be regarded, for all Canadian legal purposes, as a nullity.\n\nIn sum, based on Gaytan, which establishes the defence of duress as a relevant constraint for the operation of the Act’s inadmissibility framework, and this Court’s jurisprudence on that framework’s serious criminality provisions, which does not preclude consideration of the facts underlying a foreign conviction in all circumstances, and given the centrality of voluntariness as a fundamental governing principle of criminal liability in Canada, I would, being satisfied that this is consistent with the text, context and purpose of paragraph 36(1)(b) of the Act, answer the certified question, as reformulated in these Reasons, in the affirmative.\n\nThe question now is whether this answer should result in the appeal being allowed. I believe it should.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-24", + "id": "fca-521840-43", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 46–47", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 120–124", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "More recent pronouncements, however, are less categorical, no doubt in response to a growing number of genuine and bogus refugee claims. For example, Article 28 of the EU Council Resolution, supra, provides a longer list of the grounds on which a Member State may dismiss a refuge claim as manifestly unfounded, although the absence of credible evidence supporting the claim is not among them. However, the inclusion of two grounds on which a claim must not be considered as manifestly unfounded suggests that the longer list of what makes a claim manifestly unfounded is not intended to be exhaustive.\n\nIn addition, the recent report arising from the Global Consultations process of the United Nations canvasses the various approaches adopted by states to the definition of \"manifestly unfounded\": supra, at paragraphs 28-31. In particular, it says that some states have \"factored credibility, or the absence thereof, into the original assessment of manifest unfoundedness\", while others have taken the position that a claim may be manifestly unfounded if made with the intention of misleading the national authorities. Evidence that there is as yet no international consensus on the scope of the term, \"manifestly unfounded\" is provided by paragraph 26 of this document, which states: There is a need, in UNHCR's assessment, to promote a more common understanding of the types of claim which would merit the presumption that they are manifestly unfounded or clearly abusive, and which could be examined under the accelerated procedure.", - "current_to": "2002-03-01", + "text": "As indicated at the outset of these Reasons, it is not disputed that the defence of duress was legally available to Ms. Rodriguez Anzola in Colombia and that despite differences in their wording, the Colombian defence and its Canadian counterpart were “sufficiently similar” (ID Decision at paras. 51‑52).\n\nAt paragraph 53 of its Decision, the ID summarized Ms. Rodriguez Anzola’s position as follows: [53] Ms. Rodriguez Anzola argues that the defence of duress can be considered by the [ID]. Further, she argues there is no precedent that suggests if a person does not raise the defence of duress in the foreign jurisdiction, they would be precluded from doing so now.\n\nFrom there, the ID dismissed Ms. Rodriguez Anzola’s claim on the basis that she had the opportunity to present a defence of duress during her criminal proceedings in Colombia but had instead “willingly entered a plea of guilty” (ID Decision at paras. 56 and 58). Quoting from Beltran, the ID held that it was not its role to weigh evidence of a possible defence not raised in the foreign jurisdiction in order to determine whether the impugned conduct would have resulted in a conviction in Canada (ID Decision at para. 55).\n\nI find the ID Decision to be unreasonable for a number of reasons.\n\nFirst, having concluded that, in determining whether an individual is inadmissible under paragraph 36(1)(b) of the Act, the ID is entitled to consider extenuating circumstances that caused the legal defence of duress not to be practically available to the individual concerned in the foreign jurisdiction, the ID failed to address a critical issue.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-25", + "id": "fca-521840-44", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 48–50", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 125–128", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Further evidence of state practices that widen the categories of manifestly unfounded claims to include those that are supported by no credible evidence is supplied by G. Goodwin-Gill, The Refugee in International Law, 2nd ed. (Oxford: Clarendon Press, 1996), at pages 344-47.\n\nOn the basis of the material considered above it is not possible in my opinion to conclude that a comprehensive international norm has emerged defining a manifestly unfounded or abusive application that would exclude a claim that has \"no credible basis\", as interpreted in Sheikh, supra. I would also note in this regard that under Canadian law all eligible inland claimants have a right to a full adjudicative hearing before an independent administrative tribunal, and that a finding of \"no credible basis\" is only made on the basis of this process. F. CONCLUSIONS\n\nIn view of my conclusion on the indeterminate state of international law on whether any claim that has no credible basis within the meaning of subsection 69.1(9.1) is also manifestly unfounded, it is unnecessary to consider whether that provision should be interpreted to include only claims that are manifestly unfounded or clearly abusive. I would only note that, although \"manifestly unfounded or clearly abusive\" is the phrase used in international instruments, Parliament has retained the term \"no credible basis\" in the Act.", - "current_to": "2002-03-01", + "text": "As appears from the ID Decision, Ms. Rodriguez Anzola testified having been unable to raise the defence of duress at her trial because she was sufficiently concerned for her safety and feared retribution from the FARC had she invoked that defence (ID Decision at para. 8). She testified as well that she ultimately pleaded guilty because she still felt pressure during her criminal proceedings to remain silent in court about the involvement of the FARC, again “for fear they might engage in some kind of retribution against her family” (ID Decision at para. 18; see also para. 51).\n\nThere were no issues with Ms. Rodriguez Anzola’s credibility, the ID being satisfied that she had testified candidly on the events leading up to her involvement in the commission of the offence and “credibly about the resulting court matters and her ultimate conviction” (ID Decision at para. 7).\n\nTherefore, there was evidence before the ID regarding not only the fact that Ms. Rodriguez Anzola was coerced in committing the offence for which she was ultimately convicted but also on the fact that she was coerced from raising duress as a defence against the charges laid against her.\n\nBecause of the approach taken by the ID in this case, which ignored legal constraints on how – and what – it could lawfully decide, this evidence was completely – and unreasonably – disregarded. In sum, the ID failed to address significant legal and factual constraints raised by the appellant “[causing] the reviewing court to lose confidence in the outcome reached by the decision maker” (Mason at para. 69, quoting Vavilov at para. 122).", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-26", + "id": "fca-521840-45", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "paras 51–52", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 129–131", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Finally, while I have not been able to accept the position advanced by counsel for Mr. Rahaman in this appeal, I would agree that the Board should not routinely state that a claim has \"no credible basis\" whenever it concludes that the claimant is not a credible witness. As I have attempted to demonstrate, subsection 69.1(9.1) requires the Board to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim.\n\nFor these reasons, I agree with Teitelbaum J. that, having considered the oral and documentary evidence before it, the Board committed no reviewable error in stating that Mr. Rahaman's claim lacked a credible basis. Accordingly, I would dismiss the appeal and answer the certified question as follows: Whether a finding that a refugee claimant is not a credible witness triggers the application of subsection 69.1(9.1) depends on an assessment of all the evidence in the case, both oral and documentary. In the absence of any credible or trustworthy evidence on which each Board member could have determined that the claimant was a Convention refugee, a finding that the claimant was not a credible witness will justify the conclusion that the claim lacks any credible basis.", - "current_to": "2002-03-01", + "text": "Second, Beltran was only of limited application, if any, as, contrary to what was before the ID in the present matter, there was no evidence that Mr. Beltran could not practically avail himself of the defence of duress in the foreign jurisdiction (the United States). Beltran is a case where the defence of duress was not raised in the foreign jurisdiction while it was otherwise legally available and while there was no indication that it was not reasonably available to Mr. Beltran.\n\nAs a result, the ID unreasonably felt bound to apply Beltran while the allegations before it was that the defence of duress was not raised due to persistent duress. In such context, the ID was constrained to look into the circumstances that made that defense unavailable to Ms. Rodriguez Anzola. However, this critical step in the analysis was totally ignored.\n\nFinally, contrary to the ID’s decision regarding Mr. Botero Martinez, the appellant’s husband, no consideration whatsoever seems to have been given to Gaytan in the present matter, whereas it appears to have been central to the ID decision in Mr. Botero Martinez’s case (Appeal Book at 908-909). As indicated at the outset of these reasons, Gaytan, rendered in 2021, is not even mentioned in the ID Decision, rendered on May 31, 2023. As the Supreme Court stated in Vavilov, at paragraph 105, “[e]lements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers”. Gaytan was, no doubt, as I indicated at paragraph 63 of these reasons, a relevant and critical constraint to what the ID could reasonably decide in this case.", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { - "id": "fca-31447-27", + "id": "fca-521840-46", "doc_type": "caselaw", - "act_code": "2002 FCA 89", - "act_short": "Rahaman", - "act_name": "Rahaman v. Canada (Minister of Citizenship and Immigration)", + "act_code": "2026 FCA 90", + "act_short": "Rodriguez Anzola", + "act_name": "Rodriguez Anzola v. Canada (Citizenship and Immigration)", "section": "", - "citation": "Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89", - "marginal_note": "para 53", - "heading": "Refugee claims and the meaning of a 'no credible basis' finding under IRPA", + "citation": "Rodriguez Anzola v. Canada (Citizenship and Immigration), 2026 FCA 90", + "marginal_note": "paras 132–137", + "heading": "Criminal inadmissibility under IRPA s. 36(1)(b) for a conviction abroad; whether an immigration decision-maker may consider that the defence of duress was effectively unavailable in the foreign jurisdiction", "part": "Federal Court of Appeal", "division": "", - "text": "Counsel for the Minister requested costs. However, rule 22 of the Federal Court Immigration Rules, 1993, SOR/93-235, provides that costs are not awarded in respect of an application or an appeal under the Rules, \"unless the Court, for special reasons, so orders.\" In my opinion no special reasons exist here. Given the limited authority from this Court on the interpretation of subsection 69.1(9.1), and the newly emerging importance of international human rights norms for the interpretation of domestic legislation, I cannot regard this appeal as in any way improper or inappropriately brought, a view obviously shared by the Application Judge when he certified a question for appeal. \"John M. Evans\" J.A. \"I agree A.J. Stone J.A.\" \"I agree B. Malone J.A.\"", - "current_to": "2002-03-01", + "text": "The ID’s silence on this critical point caused “[a] failure of justification in light of the legal and factual constraints bearing on the decision” (Mason at para. 66), and undermines, therefore, the level of confidence in the outcome reached by the ID (see also Vavilov at para. 112).\n\nIn sum, what plagues the ID Decision is the ID’s failure to account for significant legal and factual constraints that were relevant to what it had to decide in this case. In the result, I find that the ID Decision fails to bear the hallmarks of reasonableness.\n\nFor all these reasons, I find the ID Decision unreasonable. Therefore, I would allow the appeal, answer the reformulated certified question in the affirmative, set aside the ID Decision and remit the matter to the ID, differently constituted, for reconsideration on the basis of these Reasons.\n\nIt will be up to the ID member that will be tasked to reconsider the matter to determine the admissibility and relevance of any additional material Ms. Rodriguez Anzola might wish to bring forward on rehearing.\n\nAs provided for under section 22 of the Federal Citizenship, Immigration and Refugee Protection Rules, SOR 93/22, no costs are awarded in proceedings brought under the Act, including appeals before this Court, unless there are special reasons to do so. Neither party claims that there are special reasons calling for an award of costs in this appeal.\n\nI would therefore allow the appeal, without costs. \"René LeBlanc\" J.A. “I agree. David Stratas J.A.” “I agree. Nathalie Goyette J.A.” FEDERAL COURT OF APPEAL", + "current_to": "2026-05-11", "last_amended": "", "history": "", - "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31447/index.do" + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/521840/index.do" }, { "id": "fc-64594-1",