diff --git "a/data/processed/caselaw.json" "b/data/processed/caselaw.json" --- "a/data/processed/caselaw.json" +++ "b/data/processed/caselaw.json" @@ -14,7 +14,7 @@ "text": "The Chief Justice and Moldaver, Gascon, Côté, Brown, Rowe and Martin JJ. — This appeal and its companion cases (see Bell Canada v. Canada (Attorney General), 2019 SCC 66, [2019] 4 S.C.R. 845), provide this Court with an opportunity to re-examine its approach to judicial review of administrative decisions.\n\nIn these reasons, we will address two key aspects of the current administrative law jurisprudence which require reconsideration and clarification. First, we will chart a new course forward for determining the standard of review that applies when a court reviews the merits of an administrative decision. Second, we will provide additional guidance for reviewing courts to follow when conducting reasonableness review. The revised framework will continue to be guided by the principles underlying judicial review that this Court articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190: that judicial review functions to maintain the rule of law while giving effect to legislative intent. We will also affirm the need to develop and strengthen a culture of justification in administrative decision making.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -32,7 +32,7 @@ "text": "We will then address the merits of the case at bar, which relates to an application for judicial review of a decision by the Canadian Registrar of Citizenship concerning Alexander Vavilov, who was born in Canada and whose parents were later revealed to be Russian spies. The Registrar found on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 , that Mr. Vavilov was not a Canadian citizen and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations, SOR/93-246. In our view, the standard of review to be applied to the Registrar’s decision is reasonableness, and the Registrar’s decision was unreasonable. We would therefore uphold the Federal Court of Appeal’s decision to quash it, and would dismiss the Minister of Citizenship and Immigration’s appeal. I. Need for Clarification and Simplification of the Law of Judicial Review\n\nOver the past decades, the law relating to judicial review of administrative decisions in Canada has been characterized by continuously evolving jurisprudence and vigorous academic debate. This area of the law concerns matters which are fundamental to our legal and constitutional order, and seeks to navigate the proper relationship between administrative decision makers, the courts and individuals in our society. In parallel with the law, the role of administrative decision making in Canada has also evolved. Today, the administration of countless public bodies and regulatory regimes has been entrusted to statutory delegates with decision-making power. The number, diversity and importance of the matters that come before such delegates has made administrative decision making one of the principal manifestations of state power in the lives of Canadians.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -50,7 +50,7 @@ "text": "Given the ubiquity and practical importance of administrative decision making, it is essential that administrative decision makers, those subject to their decisions and courts tasked with reviewing those decisions have clear guidance on how judicial review is to be performed.\n\nIn granting leave to appeal in the case at bar and in its companion cases, this Court’s leave to appeal judgment made clear that it viewed these appeals as an opportunity to consider the law applicable to the judicial review of administrative decisions as addressed in Dunsmuir and subsequent cases. In light of the importance of this issue, the Court appointed two amici curiae, invited the parties to devote a substantial portion of their submissions to the standard of review issue, and granted leave to 27 interveners, comprising 4 attorneys general and numerous organizations representing the breadth of the Canadian administrative law landscape. We have, as a result, received a wealth of helpful submissions on this issue. Despite this Court’s review of the subject in Dunsmuir, some aspects of the law remain challenging. In particular, the submissions presented to the Court have highlighted two aspects of the current framework which need clarification.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -68,7 +68,7 @@ "text": "The first aspect is the analysis for determining the standard of review. It has become clear that Dunsmuir’s promise of simplicity and predictability in this respect has not been fully realized. In Dunsmuir, a majority of the Court merged the standards of “patent unreasonableness” and “reasonableness simpliciter” into a single “reasonableness” standard, thus reducing the number of standards of review from three to two: paras. 34-50. It also sought to simplify the analysis for determining the applicable standard of review: paras. 51-64. Since Dunsmuir, the jurisprudence has evolved to recognize that reasonableness will be the applicable standard for most categories of questions on judicial review, including, presumptively, when a decision maker interprets its enabling statute: see, e.g., Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654; Mouvement laïque québécois v. Saguenay (City), 2015 SCC 16, [2015] 2 S.C.R. 3, at para. 46; Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197, at para. 13; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339, at para. 25; Dunsmuir, at para. 54. The Court has indicated that this presumption may be rebutted by showing the issue on review falls within a category of questions attracting correctness review: see McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at para. 22.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -86,7 +86,7 @@ "text": "It may also be rebutted by showing that the context indicates that the legislature intended the standard of review to be correctness: McLean, at para. 22; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293, at para. 32; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31, [2018] 2 S.C.R. 230 (“CHRC”), at paras. 45-46. However, uncertainty about when the contextual analysis remains appropriate and debate surrounding the scope of the correctness categories have sometimes caused confusion and made the analysis unwieldy: see, e.g., P. Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527.\n\nIn addition, this analysis has in some respects departed from the theoretical foundations underpinning judicial review. 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": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -104,7 +104,7 @@ "text": "The uncertainty that has followed Dunsmuir has been highlighted by judicial and academic criticism, litigants who have come before this Court, and organizations that represent Canadians who interact with administrative decision makers. These are not light critiques or theoretical challenges. They go to the core of the coherence of our administrative law jurisprudence and to the practical implications of this lack of coherence. This Court, too, has taken note. In Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770, at para. 19, Abella J. expressed the need to “simplify the standard of review labyrinth we currently find ourselves in” and offered suggestions with a view to beginning a necessary conversation on the way forward. It is in this context that the Court decided to grant leave to hear this case and the companion cases jointly.\n\nThis process has led us to conclude that a reconsideration of this Court’s approach is necessary in order to bring greater coherence and predictability to this area of law. We have therefore adopted a revised framework for determining the standard of review where a court reviews the merits of an administrative decision. The analysis begins with a presumption that reasonableness is the applicable standard in all cases. Reviewing courts should derogate from this presumption only where required by a clear indication of legislative intent or by the rule of law.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -122,7 +122,7 @@ "text": "The second aspect is the need for better guidance from this Court on the proper application of the reasonableness standard. The Court has heard concerns that reasonableness review is sometimes perceived as advancing a two-tiered justice system in which those subject to administrative decisions are entitled only to an outcome somewhere between “good enough” and “not quite wrong”. These concerns have been echoed by some members of the legal profession, civil society organizations and legal clinics. The Court has an obligation to take these perspectives seriously and to ensure that the framework it adopts accommodates all types of administrative decision making, in areas that range from immigration, prison administration and social security entitlements to labour relations, securities regulation and energy policy.\n\nThese concerns regarding the application of the reasonableness standard speak to the need for this Court to more clearly articulate what that standard entails and how it should be applied in practice. Reasonableness review is methodologically distinct from correctness review. It is informed by the need to respect the legislature’s choice to delegate decision-making authority to the administrative decision maker rather than to the reviewing court. In order to fulfill Dunsmuir’s promise to protect “the legality, the reasonableness and the fairness of the administrative process and its outcomes”, reasonableness review must entail a sensitive and respectful, but robust, evaluation of administrative decisions: para. 28.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -140,7 +140,7 @@ "text": "Reasonableness review is an approach meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process. It finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers. However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.\n\nOn the one hand, courts must recognize the legitimacy and authority of administrative decision makers within their proper spheres and adopt an appropriate posture of respect. On the other hand, administrative decision makers must 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”: the Rt. Hon. B. McLachlin, “The Roles of Administrative Tribunals and Courts in Maintaining the Rule of Law” (1998), 12 C.J.A.L.P. 171, at p. 174 (emphasis deleted); see also M. Cohen-Eliya and I. Porat, “Proportionality and Justification” (2014), 64 U.T.L.J. 458, at pp. 467-70.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -158,7 +158,7 @@ "text": "In conducting a reasonableness review, a court must consider the outcome of the administrative decision in light of its underlying rationale in order to ensure that the decision as a whole is transparent, intelligible and justified. What distinguishes reasonableness review from correctness review is that the court conducting a reasonableness review must focus on the decision the administrative decision maker actually made, including the justification offered for it, and not on the conclusion the court itself would have reached in the administrative decision maker’s place. II. Determining the Applicable Standard of Review\n\nIn the following sections, we set out a revised framework for determining the standard of review a court should apply when the merits of an administrative decision are challenged. It starts with a presumption that reasonableness is the applicable standard whenever a court reviews administrative decisions.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -176,7 +176,7 @@ "text": "The presumption of reasonableness review can be rebutted in two types of situations. The first is where the legislature has indicated that it intends a different standard or set of standards to apply. This will be the case where the legislature explicitly prescribes the applicable standard of review. It will also be the case where the legislature has provided a statutory appeal mechanism from an administrative decision to a court, thereby signalling the legislature’s intent that appellate standards apply when a court reviews the decision. The second situation in which the presumption of reasonableness review will be rebutted is where the rule of law requires that the standard of correctness be applied. This will be the case for certain categories of questions, namely constitutional questions, general questions of law of central importance to the legal system as a whole and questions related to the jurisdictional boundaries between two or more administrative bodies. The general rule of reasonableness review, when coupled with these limited exceptions, offers a comprehensive approach to determining the applicable standard of review. As a result, it is no longer necessary for courts to engage in a “contextual inquiry” (CHRC, at paras. 45-47; see also Dunsmuir, at paras. 62-64; McLean, at para. 22) in order to identify the appropriate standard.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -194,7 +194,7 @@ "text": "Before setting out the framework for determining the standard of review in greater detail, we wish to acknowledge that these reasons depart from the Court’s existing jurisprudence on standard of review in certain respects. Any reconsideration such as this can be justified only by compelling circumstances, and we do not take this decision lightly. A decision to adjust course will always require the Court to carefully weigh the impact on legal certainty and predictability against the costs of continuing to follow a flawed approach: see Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 47; Canada v. Craig, 2012 SCC 43, [2012] 2 S.C.R. 489, at paras. 24-27; Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3, at paras. 56-57, 129-31 and 139; R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609, at paras. 43-44; R. v. Bernard, [1988] 2 S.C.R. 833, at pp. 849-50.\n\nOn this point, we recall the observation of Gibbs J. in Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), which this Court endorsed in Craig, at para. 26: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established. It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -212,7 +212,7 @@ "text": "Nonetheless, this Court has in the past revisited precedents that were determined to be unsound in principle, that had proven to be unworkable and unnecessarily complex to apply, or that had attracted significant and valid judicial, academic and other criticism: Craig, at paras. 28-30; Henry, at paras. 45-47; Fraser, at para. 135 (per Rothstein J., concurring in the result); Bernard, at pp. 858-59. Although adhering to the established jurisprudence will generally promote certainty and predictability, in some instances doing so will create or perpetuate uncertainty in the law: Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 528; Bernard, at p. 858; R. v. B. (K.G.), [1993] 1 S.C.R. 740, at p. 778. In such circumstances, “following the prior decision because of stare decisis would be contrary to the underlying value behind that doctrine, namely, clarity and certainty in the law”: Bernard, at p. 858. These considerations apply here.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -230,7 +230,7 @@ "text": "Certain aspects of the current framework are unclear and unduly complex. The practical effect of this lack of clarity is that courts sometimes struggle in conducting the standard of review analysis, and costly debates surrounding the appropriate standard and its application continue to overshadow the review on the merits in many cases, thereby undermining access to justice. The words of Binnie J. in his concurring reasons in Dunsmuir, at para. 133, are still apt: . . . judicial review is burdened with undue cost and delay. Litigants understandably hesitate to go to court to seek redress for a perceived administrative injustice if their lawyers cannot predict with confidence even what standard of review will be applied. . . . If litigants do take the plunge, they may find the court’s attention focussed not on their complaints, or the government’s response, but on lengthy and arcane discussions of something they are told is [the choice of standard analysis]. . . . A victory before the reviewing court may be overturned on appeal because the wrong “standard of review” was selected. A small business denied a licence or a professional person who wants to challenge disciplinary action should be able to seek judicial review without betting the store or the house on the outcome. Regrettably, we find ourselves in a similar position following Dunsmuir. As Karakatsanis J. observed in Edmonton East, at para. 35, “[t]he contextual approach can generate uncertainty and endless litigation concerning the standard of review”. While counsel and courts attempt to work through the complexities of determining the standard of review and its proper application, litigants “still find the merits waiting in the wings for their chance to be seen and reviewed”: Wilson, at para. 25, per Abella J.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -248,7 +248,7 @@ "text": "As noted in CHRC, this Court “has for years attempted to simplify the standard of review analysis in order to ‘get the parties away from arguing about the tests and back to arguing about the substantive merits of their case’”: para. 27, quoting Alberta Teachers, at para. 36, citing Dunsmuir, at para. 145, per Binnie J. The principled changes set out below seek to promote the values underlying stare decisis and to make the law on the standard of review more certain, coherent and workable going forward. A. Presumption That Reasonableness Is the Applicable Standard\n\nWhere a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decision other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -266,7 +266,7 @@ "text": "Parliament and the provincial legislatures are constitutionally empowered to create administrative bodies and to endow them with broad statutory powers: Dunsmuir, at para. 27. Where a legislature has created an administrative decision maker for the specific purpose of administering a statutory scheme, it must be presumed that the legislature also intended that decision maker to be able to fulfill its mandate and interpret the law as applicable to all issues that come before it. Where a legislature has not explicitly prescribed that a court is to have a role in reviewing the decisions of that decision maker, it can safely be assumed that the legislature intended the administrative decision maker to function with a minimum of judicial interference. However, because judicial review is protected by s. 96 of the Constitution Act, 1867 , legislatures cannot shield administrative decision making from curial scrutiny entirely: Dunsmuir, at para. 31; Crevier v. Attorney General of Quebec, [1981] 2 S.C.R. 220, at pp. 236-37; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p. 1090. Nevertheless, respect for these institutional design choices made by the legislature requires a reviewing court to adopt a posture of restraint on review.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -284,7 +284,7 @@ "text": "For years, this Court’s jurisprudence has moved toward a recognition that the reasonableness standard should be the starting point for a court’s review of an administrative decision. Indeed, a presumption of reasonableness review is already a well-established feature of the standard of review analysis in cases in which administrative decision makers interpret their home statutes: see Alberta Teachers, at para. 30; Saguenay, at para. 46; Edmonton East, at para. 22. In our view, it is now appropriate to hold that whenever a court reviews an administrative decision, it should start with the presumption that the applicable standard of review for all aspects of that decision will be reasonableness. While this presumption applies to the administrative decision maker’s interpretation of its enabling statute, the presumption also applies more broadly to other aspects of its decision.\n\nBefore turning to an explanation of how the presumption of reasonableness review may be rebutted, we believe it is desirable to clarify one aspect of the conceptual basis for this presumption. Since Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”), the central rationale for applying a deferential standard of review in administrative law has been a respect for the legislature’s institutional design choice to delegate certain matters to non-judicial decision makers through statute: C.U.P.E., at pp. 235-36. However, this Court has subsequently identified a number of other justifications for applying the reasonableness standard, some of which have taken on influential roles in the standard of review analysis at various times.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -302,7 +302,7 @@ "text": "In particular, the Court has described one rationale for applying the reasonableness standard as being the relative expertise of administrative decision makers with respect to the questions before them: see, e.g., C.U.P.E., at p. 236; Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 32-35; Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at pp. 591-92; Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paras. 50-53; Dunsmuir, at para. 49, quoting D. J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93; see also Dunsmuir, at para. 68. However, this Court’s jurisprudence has sometimes been deeply divided on the question of what expertise entails in the administrative context, how it should be assessed and how it should inform the standard of review analysis: see, e.g., Khosa, at paras. 23-25, per Binnie J. for the majority, compared to paras. 93-96, per Rothstein J., concurring in the result; Edmonton East, at para. 33, per Karakatsanis J. for the majority, compared to paras. 81-86, per Côté and Brown JJ., dissenting. In the era of what was known as the “pragmatic and functional” approach, which was first set out in Bibeault, a decision maker’s expertise relative to that of the reviewing court was one of the key contextual factors said to indicate legislative intent with respect to the standard of review, but the decision maker was not presumed to have relative expertise.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -320,7 +320,7 @@ "text": "Instead, whether a decision maker had greater expertise than the reviewing court was assessed in relation to the specific question at issue and on the basis of a contextual analysis that could incorporate factors such as the qualification of an administrative body’s members, their experience in a particular area and their involvement in policy making: see, e.g., Pezim, at pp. 591-92; Southam, at paras. 50-53; Dr. Q v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, at paras. 28-29; Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100, at paras. 28-32; Moreau‑Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 50.\n\nUnfortunately, this contextual analysis proved to be unwieldy and offered limited practical guidance for courts attempting to assess an administrative decision maker’s relative expertise. More recently, the dominant approach in this Court has been to accept that expertise simply inheres in an administrative body by virtue of the specialized function designated for it by the legislature: Edmonton East, at para. 33. However, if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -338,7 +338,7 @@ "text": "Of course, the fact that the specialized role of administrative decision makers lends itself to the development of expertise and institutional experience is not the only reason that a legislature may choose to delegate decision-making authority. Over the years, the Court has pointed to a number of other compelling rationales for the legislature to delegate the administration of a statutory scheme to a particular administrative decision maker. These rationales have included the decision maker’s proximity and responsiveness to stakeholders, ability to render decisions promptly, flexibly and efficiently, and ability to provide simplified and streamlined proceedings intended to promote access to justice.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -356,7 +356,7 @@ "text": "While specialized expertise and these other rationales may all be reasons for a legislature to delegate decision-making authority, a reviewing court need not evaluate which of these rationales apply in the case of a particular decision maker in order to determine the standard of review. Instead, in our view, it is the very fact that the legislature has chosen to delegate authority which justifies a default position of reasonableness review. The Court has in fact recognized this basis for applying the reasonableness standard to administrative decisions in the past. In Khosa, for example, the majority understood Dunsmuir to stand for the proposition that “with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts”: para. 25. More recently, in Edmonton East, Karakatsanis J. explained that a presumption of reasonableness review “respects the principle of legislative supremacy and the choice made to delegate decision making to a tribunal, rather than the courts”: para. 22. And in CHRC, Gascon J. explained that “the fact that the legislature has allocated authority to a decision maker other than the courts is itself an indication that the legislature intended deferential review”: para. 50. In other words, respect for this institutional design choice and the democratic principle, as well as the need for courts to avoid “undue interference” with the administrative decision maker’s discharge of its functions, is what justifies the presumptive application of the reasonableness standard: Dunsmuir, at para. 27.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -374,7 +374,7 @@ "text": "We wish to emphasize that because these reasons adopt a presumption of reasonableness as the starting point, expertise is no longer relevant to a determination of the standard of review as it was in the contextual analysis. However, we are not doing away with the role of expertise in administrative decision making. This consideration is simply folded into the new starting point and, as explained below, expertise remains a relevant consideration in conducting reasonableness review.\n\nThat being said, our starting position that the applicable standard of review is reasonableness is not incompatible with the rule of law. However, because this approach is grounded in respect for legislative choice, it also requires courts to give effect to clear legislative direction that a different standard was intended. Similarly, a reviewing court must be prepared to derogate from the presumption of reasonableness review where respect for the rule of law requires a singular, determinate and final answer to the question before it. Each of these situations will be discussed in turn below. B. Derogation From the Presumption of Reasonableness Review on the Basis of Legislative Intent", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -392,7 +392,7 @@ "text": "This Court has described respect for legislative intent as the “polar star” of judicial review: C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149. This description remains apt. The presumption of reasonableness review discussed above is intended to give effect to the legislature’s choice to leave certain matters with administrative decision makers rather than the courts. It follows that this presumption will be rebutted where a legislature has indicated that a different standard should apply. The legislature can do so in two ways. First, it may explicitly prescribe through statute what standard courts should apply when reviewing decisions of a particular administrative decision maker. Second, it may direct that derogation from the presumption of reasonableness review is appropriate by providing for a statutory appeal mechanism from an administrative decision maker to a court, thereby signalling the application of appellate standards. (1) Legislated Standards of Review", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -410,7 +410,7 @@ "text": "Any framework rooted in legislative intent must, to the extent possible, respect clear statutory language that prescribes the applicable standard of review. This Court has consistently affirmed that legislated standards of review should be given effect: see, e.g., R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, at paras. 31-32; Khosa, at paras. 18-19; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422, at para. 20; Moore v. British Columbia (Education), 2012 SCC 61, [2012] 3 S.C.R. 360, at para. 55; McCormick v. Fasken Martineau DuMoulin LLP, 2014 SCC 39, [2014] 2 S.C.R. 108, at para. 16; British Columbia (Workers’ Compensation Appeal Tribunal) v. Fraser Health Authority, 2016 SCC 25, [2016] 1 S.C.R. 587, at paras. 8 and 29; British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62, [2017] 2 S.C.R. 795, at para. 28.\n\nIt follows that where a legislature has indicated that courts are to apply the standard of correctness in reviewing certain questions, that standard must be applied. In British Columbia, the legislature has established the applicable standard of review for many tribunals by reference to the Administrative Tribunals Act, S.B.C. 2004, c. 45: see ss. 58 and 59. For example, it has provided that the standard of review applicable to decisions on questions of statutory interpretation by the B.C. Human Rights Tribunal is to be correctness: ibid., s. 59(1); Human Rights Code, R.S.B.C. 1996, c. 210, s. 32. We continue to be of the view that 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. (2) Statutory Appeal Mechanisms", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -428,7 +428,7 @@ "text": "We have reaffirmed that, to the extent possible, the standard of review analysis requires courts to give effect to the legislature’s institutional design choices to delegate authority through statute. In our view, this principled position also requires courts to give effect to the legislature’s intent, signalled by the presence of a statutory appeal mechanism from an administrative decision to a court, that the court is to perform an appellate function with respect to that decision. Just as a legislature may, within constitutional limits, insulate administrative decisions from judicial interference, it may also choose to establish a regime “which does not exclude the courts but rather makes them part of the enforcement machinery”: Seneca College of Applied Arts and Technology v. Bhadauria, [1981] 2 S.C.R. 181, at p. 195. Where a legislature has provided that parties may appeal from an administrative decision to a court, either as of right or with leave, it has subjected the administrative regime to appellate oversight and indicated that it expects the court to scrutinize such administrative decisions on an appellate basis. This expressed intention necessarily rebuts the blanket presumption of reasonableness review, which is premised on giving effect to a legislature’s decision to leave certain issues with a body other than a court. This intention should be given effect. As noted by the intervener Attorney General of Quebec in her factum, [translation] “[t]he requirement of deference must not sterilize such an appeal mechanism to the point that it changes the nature of the decision-making process the legislature intended to put in place”: para. 2.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -446,7 +446,7 @@ "text": "It should therefore be recognized that, where the legislature has provided for an appeal from an administrative decision to a court, a court hearing such an appeal is to apply appellate standards of review to the decision. This means that the applicable standard is to be determined with reference to the nature of the question and to this Court’s jurisprudence on appellate standards of review. Where, for example, a court is hearing an appeal from an administrative decision, it would, in considering questions of law, including questions of statutory interpretation and those concerning the scope of a decision maker’s authority, apply the standard of correctness in accordance with Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 8. Where the scope of the statutory appeal includes questions of fact, the appellate standard of review for those questions is palpable and overriding error (as it is for questions of mixed fact and law where the legal principle is not readily extricable): see Housen, at paras. 10, 19 and 26-37. Of course, should a legislature intend that a different standard of review apply in a statutory appeal, it is always free to make that intention known by prescribing the applicable standard through statute.\n\nWe acknowledge that giving effect to statutory appeal mechanisms in this way departs from the Court’s recent jurisprudence. However, after careful consideration, we are of the view that this shift is necessary in order to bring coherence and conceptual balance to the standard of review analysis and is justified by a weighing of the values of certainty and correctness: Craig, at para. 27. Our conclusion is based on the following considerations.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -464,7 +464,7 @@ "text": "First, there has been significant judicial and academic criticism of this Court’s recent approach to statutory appeal rights: see, e.g., Y.-M. Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 244; the Hon. J. T. Robertson, Administrative Deference: The Canadian Doctrine that Continues to Disappoint (April 18, 2018) (online), at p. 8; the Hon. D. Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency” (2016), 42 Queen’s L.J. 27, at p. 33; Daly, at pp. 541-42; Québec (Procureure générale) v. Montréal (Ville), 2016 QCCA 2108, 17 Admin. L.R. (6th) 328, at paras. 36-46; Bell Canada v. 7262591 Canada Ltd., 2018 FCA 174, 428 D.L.R. (4th) 311, at paras. 190-92, per Nadon J.A., concurring, and at paras. 66 and 69-72, per Rennie J.A., dissenting; Garneau Community League v. Edmonton (City), 2017 ABCA 374, 60 Alta. L.R. (6th) 1, at paras. 91 and 93-95, per Slatter J.A., concurring; Nova Scotia (Attorney General) v. S&D Smith Central Supplies Limited, 2019 NSCA 22, at paras. 250, 255‑64 and 274‑302 (CanLII), per Beveridge J.A., dissenting; Atlantic Mining NS Corp. (D.D.V. Gold Limited) v. Oakley, 2019 NSCA 14, at paras. 9-14 (CanLII). These critiques seize on the inconsistency inherent in a standard of review framework based on legislative intent that otherwise declines to give meaning to an express statutory right of appeal. This criticism observes that legislative choice is not one-dimensional; rather, it pulls in two directions. While a legislative choice to delegate to an administrative decision maker grounds a presumption of reasonableness on the one hand, a legislative choice to enact a statutory right of appeal signals an intention to ascribe an appellate role to reviewing courts on the other hand.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -482,7 +482,7 @@ "text": "This Court has in the past held that the existence of significant and valid judicial, academic and other criticism of its jurisprudence may justify reconsideration of a precedent: Craig, at para. 29; R. v. Robinson, [1996] 1 S.C.R. 683, at paras. 35-41. This consideration applies in the instant case. In particular, the suggestion that the recent treatment of statutory rights of appeal represents a departure from the conceptual basis underpinning the standard of review framework is itself a compelling reason to re-examine the current approach: Khosa, at para. 87, per Rothstein J., concurring in the result.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -500,7 +500,7 @@ "text": "Second, there is no satisfactory justification for the recent trend in this Court’s jurisprudence to give no effect to statutory rights of appeal in the standard of review analysis absent exceptional wording: see Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161, at paras. 35-39. Indeed, this approach is itself a departure from earlier jurisprudence: the Hon. J. T. Robertson, “Judicial Deference to Administrative Tribunals: A Guide to 60 Years of Supreme Court Jurisprudence” (2014), 66 S.C.L.R. (2d) 1, at pp. 91-93. Under the former “pragmatic and functional” approach to determining the applicable standard of review, the existence of a privative clause or a statutory right of appeal was one of four contextual factors that a court would consider in order to determine the standard that the legislature intended to apply to a particular decision. Although a statutory appeal clause was not determinative, it was understood to be a key factor indicating that the legislature intended that a less deferential standard of review be applied: see, e.g., Pezim, at pp. 589-92; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739, at paras. 28-31; Southam, at paras. 30-32, 46 and 54-55; Pushpanathan, at paras. 30-31; Dr. Q, at para. 27; Mattel, at paras. 26-27; Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 21 and 27-29; Barrie Public Utilities v. Canadian Cable Television Assn., 2003 SCC 28, [2003] 1 S.C.R. 476, at para. 11; Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152, at para. 7.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -518,7 +518,7 @@ "text": "The Court did indeed sometimes find that, even in a statutory appeal, a deferential standard of review was warranted for the legal findings of a decision maker that lay at the heart of the decision maker’s expertise: see, e.g., Pezim. In other instances, however, the Court concluded that the existence of a statutory appeal mechanism and the fact that the decision maker did not have greater expertise than a court on the issue being considered indicated that correctness was the appropriate standard, including on matters involving the interpretation of the administrative decision maker’s home statute: see, e.g., Mattel, at paras. 26-33; Barrie Public Utilities, at paras. 9-19; Monsanto, at paras. 6-16.\n\nYet as, in Dunsmuir, Alberta Teachers, Edmonton East and subsequent cases, the standard of review analysis was simplified and shifted from a contextual analysis to an approach more focused on categories, statutory appeal mechanisms ceased to play a role in the analysis. Although this simplification of the standard of review analysis may have been a laudable change, it did not justify ceasing to give any effect to statutory appeal mechanisms. Dunsmuir itself provides little guidance on the rationale for this change. The majority in Dunsmuir was silent on the role of a statutory right of appeal in determining the standard of review, and did not refer to the prior treatment of statutory rights of appeal under the pragmatic and functional approach.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -536,7 +536,7 @@ "text": "More generally, there is no convincing reason to presume that legislatures mean something entirely different when they use the word “appeal” in an administrative law statute than they do in, for example, a criminal or commercial law context. Accepting that the word “appeal” refers to the same type of procedure in all these contexts also accords with the presumption of consistent expression, according to which the legislature is presumed to use language such that the same words have the same meaning both within a statute and across statutes: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 217. Accepting that the legislature intends an appellate standard of review to be applied when it uses the word “appeal” also helps to explain why many statutes provide for both appeal and judicial review mechanisms in different contexts, thereby indicating two roles for reviewing courts: see, e.g., Federal Courts Act , R.S.C. 1985, c. F-7, ss. 27 and 28 . This offers further support for giving effect to statutory rights of appeal. Our colleagues’ suggestion that our position in this regard “hinges” on what they call a “textualist argument” (at para. 246) is inaccurate.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -554,7 +554,7 @@ "text": "That there is no principled rationale for ignoring statutory appeal mechanisms becomes obvious when the broader context of those mechanisms is considered. 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 a court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding. However, if the same standards of review applied regardless of whether a question was covered by the appeal provision, and regardless of whether an individual subject to an administrative decision was granted leave to appeal or applied for judicial review, the appeal provision would be completely redundant — contrary to the well-established principle that the legislature does not speak in vain: Attorney General of Quebec v. Carrières Ste-Thérèse Ltée, [1985] 1 S.C.R. 831, at p. 838.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -572,7 +572,7 @@ "text": "Finally, and most crucially, the appeals now before the Court have allowed for a comprehensive and considered examination of the standard of review analysis with the goal of remedying the conceptual and practical difficulties that have made this area of the law challenging for litigants and courts alike. To achieve this goal, the revised framework must, for at least two reasons, give effect to statutory appeal mechanisms. The first reason is conceptual. In the past, this Court has looked past an appeal clause primarily when the decision maker possessed greater relative expertise — what it called the “specialization of duties” principle in Pezim, at p. 591. But, as discussed above, the presumption of reasonableness review is no longer premised upon notions of relative expertise. Instead, it is now based on respect for the legislature’s institutional design choice, according to which the authority to make a decision is vested in an administrative decision maker rather than in a court. It would be inconsistent with this conceptual basis for the presumption of reasonableness review to disregard clear indications that the legislature has intentionally chosen a more involved role for the courts. Just as recognizing a presumption of reasonableness review on all questions respects a legislature’s choice to leave some matters first and foremost to an administrative decision maker, departing from that blanket presumption in the context of a statutory appeal respects the legislature’s choice of a more involved role for the courts in supervising administrative decision making.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -590,7 +590,7 @@ "text": "The second reason is that, building on developments in the case law over the past several years, this decision conclusively closes the door on the application of a contextual analysis to determine the applicable standard, and in doing so streamlines and simplifies the standard of review framework. With the elimination of the contextual approach to selecting the standard of review, the need for statutory rights of appeal to play a role becomes clearer. Eliminating the contextual approach means that statutory rights of appeal must now either play no role in administrative law or be accepted as directing a departure from the default position of reasonableness review. The latter must prevail.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -608,7 +608,7 @@ "text": "Our colleagues agree that the time has come to put the contextual approach espoused in Dunsmuir to rest and adopt a presumption of reasonableness review. We part company on the extent to which the departure from the contextual approach requires corresponding modifications to other aspects of the standard of review jurisprudence. We consider that the elimination of the contextual approach represents an incremental yet important adjustment to Canada’s judicial review roots. While it is true that this Court has, in the past several years of jurisprudential development, warned that the contextual approach should be applied “sparingly” (CHRC, at para. 46), it is incorrect to suggest that our jurisprudence was such that the elimination of the contextual analysis was “all but complete”: reasons of Abella and Karakatsanis JJ., at para. 277; see, in this regard, CHRC, at paras. 44-54; Saguenay, at para. 46; Tervita, at para. 35; McLean, at para. 22; Edmonton East, at para. 32; Rogers Communications Inc. v. Society of Composers, Authors and Music Publishers of Canada, 2012 SCC 35, [2012] 2 S.C.R. 283, at para. 15. The contextual analysis was one part of the broader standard of review framework set out in Dunsmuir. A departure from this aspect of the Dunsmuir framework requires a principled rebalancing of the framework as a whole in order to maintain the equilibrium between the roles of administrative decision makers and reviewing courts that is fundamental to administrative law.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -626,7 +626,7 @@ "text": "In our view, with the starting position of this presumption of reasonableness review, and in the absence of a searching contextual analysis, legislative intent can only be given effect in this framework if statutory appeal mechanisms, as clear signals of legislative intent with respect to the applicable standard of review, are given effect through the application of appellate standards by reviewing courts. Conversely, in such a framework that is based on a presumption of reasonableness review, contextual factors that courts once looked to as signalling deferential review, such as privative clauses, serve no independent or additional function in identifying the standard of review.\n\nWe wish, at this juncture, to make three points regarding how the presence of a statutory appeal mechanism should inform the choice of standard analysis. First, we note that statutory regimes that provide for parties to appeal to a court from an administrative decision may allow them to do so in all cases (that is, as of right) or only with leave of the court. While the existence of a leave requirement will affect whether a court will hear an appeal from a particular decision, it does not affect the standard to be applied if leave is given and the appeal is heard.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -644,7 +644,7 @@ "text": "Second, we note that not all legislative provisions that contemplate a court reviewing an administrative decision actually provide a right of appeal. Some provisions simply recognize that all administrative decisions are subject to judicial review and address procedural or other similar aspects of judicial review in a particular context. Since these provisions do not give courts an appellate function, they do not authorize the application of appellate standards. Some examples of such provisions are ss. 18 to 18.2 , 18.4 and 28 of the Federal Courts Act , which confer jurisdiction on the Federal Court and the Federal Court of Appeal to hear and determine applications for judicial review of decisions of federal bodies and grant remedies, and also address procedural aspects of such applications: see Khosa, at para. 34. Another example is the current version of s. 470 of Alberta’s Municipal Government Act, R.S.A. 2000, c. M-26, which does not provide for an appeal to a court, but addresses procedural considerations and consequences that apply “[w]here a decision of an assessment review board is the subject of an application for judicial review”: s. 470(1).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -662,7 +662,7 @@ "text": "Third, we would note that 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. C. The Applicable Standard Is Correctness Where Required by the Rule of Law\n\nIn our view, respect for the rule of law requires courts to apply the standard of correctness for certain types of legal questions: constitutional questions, general questions of law of central importance to the legal system as a whole and questions regarding the jurisdictional boundaries between two or more administrative bodies. The application of the correctness standard for such questions respects the unique role of the judiciary in interpreting the Constitution and ensures that courts are able to provide the last word on questions for which the rule of law requires consistency and for which a final and determinate answer is necessary: Dunsmuir, at para. 58.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -680,7 +680,7 @@ "text": "When applying the correctness standard, the reviewing court may choose either to uphold the administrative decision maker’s determination or to substitute its own view: Dunsmuir, at para. 50. While it should take the administrative decision maker’s reasoning into account — and indeed, it may find that reasoning persuasive and adopt it — the reviewing court is ultimately empowered to come to its own conclusions on the question. (1) Constitutional Questions\n\nQuestions regarding the division of powers between Parliament and the provinces, the relationship between the legislature and the other branches of the state, the scope of Aboriginal and treaty rights under s. 35 of the Constitution Act, 1982 , and other constitutional matters require a final and determinate answer from the courts. Therefore, the standard of correctness must continue to be applied in reviewing such questions: Dunsmuir, at para. 58; Westcoast Energy Inc. v. Canada (National Energy Board), [1998] 1 S.C.R. 322.\n\nThe Constitution — both written and unwritten — dictates the limits of all state action. Legislatures and administrative decision makers are bound by the Constitution and must comply with it. A legislature cannot alter the scope of its own constitutional powers through statute. Nor can it alter the constitutional limits of executive power by delegating authority to an administrative body. In other words, although a legislature may choose what powers it delegates to an administrative body, it cannot delegate powers that it does not constitutionally have. The constitutional authority to act must have determinate, defined and consistent limits, which necessitates the application of the correctness standard.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -698,7 +698,7 @@ "text": "Although the amici questioned the approach to the standard of review set out in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, a reconsideration of that approach is not germane to the issues in this appeal. However, it is important to draw a distinction between cases in which it is alleged that the effect of the administrative decision being reviewed is to unjustifiably limit rights under the Canadian Charter of Rights and Freedoms (as was the case in Doré) and those in which the issue on review is whether a provision of the decision maker’s enabling statute violates the Charter (see, e.g., Nova Scotia (Workers’ Compensation Board) v. Martin, 2003 SCC 54, [2003] 2 S.C.R. 504, at para. 65). Our jurisprudence holds that an administrative decision maker’s interpretation of the latter issue should be reviewed for correctness, and that jurisprudence is not displaced by these reasons. (2) General Questions of Law of Central Importance to the Legal System as a Whole", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -716,7 +716,7 @@ "text": "In Dunsmuir, a majority of the Court held that, in addition to constitutional questions, general questions of law which are “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” will require the application of the correctness standard: para. 60, citing Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77, at para. 62, per LeBel J., concurring. We remain of the view that the rule of law requires courts to have the final word with regard to general questions of law that are “of central importance to the legal system as a whole”. However, a return to first principles reveals that it is not necessary to evaluate the decision maker’s specialized expertise in order to determine whether the correctness standard must be applied in cases involving such questions. As indicated above (at para. 31) of the reasons, the consideration of expertise is folded into the new starting point adopted in these reasons, namely the presumption of reasonableness review.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -734,7 +734,7 @@ "text": "As the majority of the Court recognized in Dunsmuir, the key underlying rationale for this category of questions is the reality that certain general questions of law “require uniform and consistent answers” as a result of “their impact on the administration of justice as a whole”: Dunsmuir, at para. 60. In these cases, correctness review is necessary to resolve general questions of law that are of “fundamental importance and broad applicability”, with significant legal consequences for the justice system as a whole or for other institutions of government: see Toronto (City), at para. 70; Alberta (Information and Privacy Commissioner) v. University of Calgary, 2016 SCC 53, [2016] 2 S.C.R. 555, at para. 20; Canadian National Railway, at para. 60; Chagnon v. Syndicat de la fonction publique et parapublique du Québec, 2018 SCC 39, [2018] 2 S.C.R. 687, at para. 17; Saguenay, at para. 51; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471 (“Mowat”), at para. 22; Commission scolaire de Laval v. Syndicat de l’enseignement de la région de Laval, 2016 SCC 8, [2016] 1 S.C.R. 29, at para. 38. For example, the question in University of Calgary could not be resolved by applying the reasonableness standard, because the decision would have had legal implications for a wide variety of other statutes and because the uniform protection of solicitor-client privilege — at issue in that case — is necessary for the proper functioning of the justice system: University of Calgary, at paras. 19-26. As this shows, the resolution of general questions of law “of central importance to the legal system as a whole” has implications beyond the decision at hand, hence the need for “uniform and consistent answers”.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -752,7 +752,7 @@ "text": "This Court’s jurisprudence continues to provide important guidance regarding what constitutes a general question of law of central importance to the legal system as a whole. For example, the following general questions of law have been held to be of central importance to the legal system as a whole: when an administrative proceeding will be barred by the doctrines of res judicata and abuse of process (Toronto (City), at para. 15); the scope of the state’s duty of religious neutrality (Saguenay, at para. 49); the appropriateness of limits on solicitor-client privilege (University of Calgary, at para. 20); and the scope of parliamentary privilege (Chagnon, at para. 17). We caution, however, that this jurisprudence must be read carefully, given that expertise is no longer a consideration in identifying such questions: see, e.g., CHRC, at para. 43.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -770,7 +770,7 @@ "text": "We would stress that the mere fact that a dispute is “of wider public concern” is not sufficient for a question to fall into this category — nor is the fact that the question, when framed in a general or abstract sense, touches on an important issue: 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, at para. 66; McLean, at para. 28; Barreau du Québec v. Quebec (Attorney General), 2017 SCC 56, [2017] 2 S.C.R. 488, at para. 18. The case law reveals many examples of questions this Court has concluded are not general questions of law of central importance to the legal system as a whole. These include whether a certain tribunal can grant a particular type of compensation (Mowat, at para. 25); when estoppel may be applied as an arbitral remedy (Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616, at paras. 37-38); the interpretation of a statutory provision prescribing timelines for an investigation (Alberta Teachers, at para. 32); the scope of a management rights clause in a collective agreement (Irving Pulp & Paper, at paras. 7, 15-16 and 66, per Rothstein and Moldaver JJ., dissenting but not on this point); whether a limitation period had been triggered under securities legislation (McLean, at paras. 28-31); whether a party to a confidential contract could bring a complaint under a particular regulatory regime (Canadian National Railway, at para. 60); and the scope of an exception allowing non-advocates to represent a minister in certain proceedings (Barreau du Québec, at paras. 17-18).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -788,7 +788,7 @@ "text": "As these comments and examples indicate, this does not mean that simply because expertise no longer plays a role in the selection of the standard of review, questions of central importance are now transformed into a broad catch-all category for correctness review.\n\nIn short, general questions of law of central importance to the legal system as a whole require a single determinate answer. In cases involving such questions, the rule of law requires courts to provide a greater degree of legal certainty than reasonableness review allows. (3) Questions Regarding the Jurisdictional Boundaries Between Two or More Administrative Bodies\n\nFinally, the rule of law requires that the correctness standard be applied in order to resolve questions regarding the jurisdictional boundaries between two or more administrative bodies: Dunsmuir, at para. 61. One such question arose in Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, 2000 SCC 14, [2000] 1 S.C.R. 360, in which the issue was the jurisdiction of a labour arbitrator to consider matters of police discipline and dismissal that were otherwise subject to a comprehensive legislative regime. Similarly, in Quebec (Commission des droits de la personne et des droits de la jeunesse) v. Quebec (Attorney General), 2004 SCC 39, [2004] 2 S.C.R. 185, the Court considered a jurisdictional dispute between a labour arbitrator and the Quebec Human Rights Tribunal.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -806,7 +806,7 @@ "text": "Administrative decisions are rarely contested on this basis. Where they are, however, the rule of law requires courts to intervene where one administrative body has interpreted the scope of its authority in a manner that is incompatible with the jurisdiction of another. The rationale for this category of questions is simple: the rule of law cannot tolerate conflicting orders and proceedings where they result in a true operational conflict between two administrative bodies, pulling a party in two different and incompatible directions: see British Columbia Telephone Co., at para. 80, per McLachlin J. (as she then was), concurring. Members of the public must know where to turn in order to resolve a dispute. As with general questions of law of central importance to the legal system as a whole, the application of the correctness standard in these cases safeguards predictability, finality and certainty in the law of administrative decision making. D. A Note Regarding Jurisdictional Questions", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -824,7 +824,7 @@ "text": "We would cease to recognize jurisdictional questions as a distinct category attracting correctness review. The majority in Dunsmuir held that it was “without question” (para. 50) that the correctness standard must be applied in reviewing jurisdictional questions (also referred to as true questions of jurisdiction or vires). True questions of jurisdiction were said to arise “where the tribunal must explicitly determine whether its statutory grant of power gives it the authority to decide a particular matter”: see Dunsmuir, at para. 59; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3, at para. 32. Since Dunsmuir, however, majorities of this Court have questioned the necessity of this category, struggled to articulate its scope and “expressed serious reservations about whether such questions can be distinguished as a separate category of questions of law”: McLean, at para. 25, referring to Alberta Teachers, at para. 34; Edmonton East, at para. 26; Guérin, at paras. 32-36; CHRC, at paras. 31-41.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -842,7 +842,7 @@ "text": "As Gascon J. noted in CHRC, the concept of “jurisdiction” in the administrative law context is inherently “slippery”: para. 38. This is because, in theory, any challenge to an administrative decision can be characterized as “jurisdictional” in the sense that it calls into question whether the decision maker had the authority to act as it did: see CHRC, at para. 38; Alberta Teachers, at para. 34; see similarly City of Arlington, Texas v. Federal Communications Commission, 569 U.S. 290 (2013), at p. 299. Although this Court’s jurisprudence contemplates that only a much narrower class of “truly” jurisdictional questions requires correctness review, it has observed that there are no “clear markers” to distinguish such questions from other questions related to the interpretation of an administrative decision maker’s enabling statute: see CHRC, at para. 38. Despite differing views on whether it is possible to demarcate a class of “truly” jurisdictional questions, there is general agreement that “it is often difficult to distinguish between exercises of delegated power that raise truly jurisdictional questions from those entailing an unremarkable application of an enabling statute”: CHRC, at para. 111, per Brown J., concurring. This tension is perhaps clearest in cases where the legislature has delegated broad authority to an administrative decision maker that allows the latter to make regulations in pursuit of the objects of its enabling statute: see, e.g., Green v. Law Society of Manitoba, 2017 SCC 20, [2017] 1 S.C.R. 360; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018] 1 S.C.R. 635.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -860,7 +860,7 @@ "text": "In CHRC, the majority, while noting this inherent difficulty — and the negative impact on litigants of the resulting uncertainty in the law — nonetheless left the question of whether the category of true questions of jurisdiction remains necessary to be determined in a later case. After hearing submissions on this issue and having an adequate opportunity for reflection on this point, we are now in a position to conclude that it is not necessary to maintain this category of correctness review. The arguments that support maintaining this category — in particular the concern that a delegated decision maker should not be free to determine the scope of its own authority — can be addressed adequately by applying the framework for conducting reasonableness review that we describe below. Reasonableness review is both robust and responsive to context. 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 without having to conduct a preliminary assessment regarding whether a particular interpretation raises a “truly” or “narrowly” jurisdictional issue and without having to apply the correctness standard.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -878,7 +878,7 @@ "text": "Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable interpretations open to the decision maker — perhaps limiting it to one. Conversely, where the legislature has afforded a decision maker broad powers in general terms — and has provided no right of appeal to a court — the legislature’s intention that the decision maker have greater leeway in interpreting its enabling statute should be given effect. Without seeking to import the U.S. jurisprudence on this issue wholesale, we find that the following comments of the Supreme Court of the United States in Arlington, at p. 307, are apt: The fox-in-­the-henhouse syndrome is to be avoided not by establishing an arbitrary and undefinable category of agency decision-making that is accorded no deference, but by taking seriously, and applying rigorously, in all cases, statutory limits on agencies’ authority. Where [the legislature] has estab­lished a clear line, the agency cannot go beyond it; and where [the legislature] has established an ambiguous line, the agency can go no further than the ambiguity will fairly allow. But in rigorously applying the latter rule, a court need not pause to puzzle over whether the interpretive question presented is “jurisdictional”. E.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -896,7 +896,7 @@ "text": "Other Circumstances Requiring a Derogation From the Presumption of Reasonableness Review\n\nIn these reasons, we have identified five situations in which a derogation from the presumption of reasonableness review is warranted either on the basis of legislative intent (i.e., legislated standards of review and statutory appeal mechanisms) or because correctness review is required by the rule of law (i.e., constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding jurisdictional boundaries between administrative bodies). This framework is the product of careful consideration undertaken following extensive submissions and based on a thorough review of the relevant jurisprudence. We are of the view, at this time, that these reasons address all of the situations in which a reviewing court should derogate from the presumption of reasonableness review. As previously indicated, courts should no longer engage in a contextual inquiry to determine the standard of review or to rebut the presumption of reasonableness review. Letting go of this contextual approach will, we hope, “get the parties away from arguing about the tests and back to arguing about the substantive merits of their case”: Alberta Teachers, at para. 36, quoting Dunsmuir, at para. 145, per Binnie J., concurring.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -914,7 +914,7 @@ "text": "However, we would not definitively foreclose the possibility that another category could be recognized as requiring a derogation from the presumption of reasonableness review in a future case. But our reluctance to pronounce that the list of exceptions to the application of a reasonableness standard is closed should not be understood as inviting the routine establishment of new categories requiring correctness review. Rather, it is a recognition that it would be unrealistic to declare that we have contemplated every possible set of circumstances in which legislative intent or the rule of law will require a derogation from the presumption of reasonableness review. That being said, the recognition of any new basis for correctness review would be exceptional and would need to be consistent with the framework and the overarching principles set out in these reasons. In other words, any new category warranting a derogation from the presumption of reasonableness review on the basis of legislative intent would require a signal of legislative intent as strong and compelling as those identified in these reasons (i.e., a legislated standard of review or a statutory appeal mechanism). Similarly, the recognition of a new category of questions requiring correctness review that is based on the rule of law would be justified only where failure to apply correctness review would undermine the rule of law and jeopardize the proper functioning of the justice system in a manner analogous to the three situations described in these reasons.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -932,7 +932,7 @@ "text": "The amici curiae suggest that, in addition to the three categories of legal questions identified above, the Court should recognize an additional category of legal questions that would require correctness review on the basis of the rule of law: legal questions regarding which there is persistent discord or internal disagreement within an administrative body leading to legal incoherence. They argue that correctness review is necessary in such situations because the rule of law breaks down where legal inconsistency becomes the norm and the law’s meaning comes to depend on the identity of the decision maker. The amici curiae submit that, where competing reasonable legal interpretations linger over time at the administrative level — such that a statute comes to mean, simultaneously, both “yes” and “no” — the courts must step in to provide a determinative answer to the question without according deference to the administrative decision maker: factum of the amici curiae, at para. 91.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -950,7 +950,7 @@ "text": "We are not persuaded that the Court should recognize a distinct correctness category for legal questions on which there is persistent discord within an administrative body. In Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, this Court held that “a lack of unanimity [within a tribunal] is the price to pay for the decision-making freedom and independence given to the members of these tribunals”: p. 800; see also Ellis-Don Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4, [2001] 1 S.C.R. 221, at para. 28. That said, we agree that the hypothetical scenario suggested by the amici curiae — in which the law’s meaning depends on the identity of the individual decision maker, thereby leading to legal incoherence — is antithetical to the rule of law. In our view, however, the more robust form of reasonableness review set out below, which accounts for the value of consistency and the threat of arbitrariness, is capable, in tandem with internal administrative processes to promote consistency and with legislative oversight (see Domtar, at p. 801), of guarding against threats to the rule of law. Moreover, the precise point at which internal discord on a point of law would be so serious, persistent and unresolvable that the resulting situation would amount to “legal incoherence” and require a court to step in is not obvious. Given these practical difficulties, this Court’s binding jurisprudence and the hypothetical nature of the problem, we decline to recognize such a category in this appeal. III. Performing Reasonableness Review", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -968,7 +968,7 @@ "text": "This Court’s administrative law jurisprudence has historically focused on the analytical framework used to determine the applicable standard of review, while providing relatively little guidance on how to conduct reasonableness review in practice.\n\nIn this section of our reasons, we endeavour to provide that guidance. The approach we set out is one that focuses on justification, offers methodological consistency and reinforces the principle “that reasoned decision-making is the lynchpin of institutional legitimacy”: factum of the amici curiae, at para. 12.\n\nWe pause to note that our colleagues’ approach to reasonableness review is not fundamentally dissimilar to ours. Our colleagues emphasize that reviewing courts should respect administrative decision makers and their specialized expertise, should not ask how they themselves would have resolved an issue and should focus on whether the applicant has demonstrated that the decision is unreasonable: paras. 288, 289 and 291. We agree. As we have stated above, at para. 13, reasonableness review finds its starting point in judicial restraint and respects the distinct role of administrative decision makers. Moreover, as explained below, reasonableness review considers all relevant circumstances in order to determine whether the applicant has met their onus. A. Procedural Fairness and Substantive Review\n\nBefore turning to a discussion of the proposed approach to reasonableness review, we pause to acknowledge that the requirements of the duty of procedural fairness in a given case — and in particular whether that duty requires a decision maker to give reasons for its decision — will impact how a court conducts reasonableness review.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -986,7 +986,7 @@ "text": "It is well established that, as a matter of procedural fairness, reasons are not required for all administrative decisions. The duty of procedural fairness in administrative law is “eminently variable”, inherently flexible and context-specific: Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at paras. 22-23; Moreau-Bérubé, at paras. 74‑75; Dunsmuir, at para. 79. Where a particular administrative decision-making context gives rise to a duty of procedural fairness, the specific procedural requirements that the duty imposes are determined with reference to all of the circumstances: Baker, at para. 21. In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case, one aspect of which is whether written reasons are required. Those factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27; see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine v. Lafontaine (Village), 2004 SCC 48, [2004] 2 S.C.R. 650, at para. 5. Cases in which written reasons tend to be required include those in which the decision-making process gives the parties participatory rights, an adverse decision would have a significant impact on an individual or there is a right of appeal: Baker, at para. 43; D. J. M. Brown and the Hon. J. M. Evans, with the assistance of D.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1004,7 +1004,7 @@ "text": "Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), vol. 3, at p. 12-54.\n\nIn the case at bar and in its companion cases, reasons for the administrative decisions at issue were both required and provided. Our discussion of the proper approach to reasonableness review will therefore focus on the circumstances in which reasons for an administrative decision are required and available to the reviewing court.\n\nNotwithstanding the important differences between the administrative context and the judicial context, reasons generally serve many of the same purposes in the former as in the latter: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 15 and 22-23. Reasons explain how and why a decision was made. They help to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner. Reasons shield against arbitrariness as well as the perception of arbitrariness in the exercise of public power: Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at paras. 12-13. As L’Heureux-Dubé J. noted in Baker, “[t]hose affected may be more likely to feel they were treated fairly and appropriately if reasons are given”: para. 39, citing S. A. de Smith, J. Jowell and Lord Woolf, Judicial Review of Administrative Action (5th ed. 1995), at pp. 459-60. And as Jocelyn Stacey and the Hon. Alice Woolley persuasively write, “public decisions gain their democratic and legal authority through a process of public justification” which includes reasons “that justify [the] decisions [of public decision makers] in light of the constitutional, statutory and common law context in which they operate”: “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at p. 220.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1022,7 +1022,7 @@ "text": "The process of drafting reasons also necessarily encourages administrative decision makers to more carefully examine their own thinking and to better articulate their analysis in the process: Baker, at para. 39. This is what Justice Sharpe describes — albeit in the judicial context — as the “discipline of reasons”: Good Judgment: Making Judicial Decisions (2018), at p. 134; see also Sheppard, at para. 23.\n\nReasons facilitate meaningful judicial review by shedding light on the rationale for a decision: Baker, at para. 39. In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, the Court reaffirmed that “the purpose of reasons, when they are required, is to demonstrate ‘justification, transparency and intelligibility’”: para. 1, quoting Dunsmuir, at para. 47; see also Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, at para. 126. The starting point for our analysis is therefore that where reasons are required, they are the primary mechanism by which administrative decision makers show that their decisions are reasonable — both to the affected parties and to the reviewing courts. It follows that the provision of reasons for an administrative decision may have implications for its legitimacy, including in terms both of whether it is procedurally fair and of whether it is substantively reasonable. B. Reasonableness Review Is Concerned With the Decision-making Process and Its Outcomes", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1040,7 +1040,7 @@ "text": "Reasonableness 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: see Dunsmuir, at paras. 27-28 and 48; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 10; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3, at para. 10.\n\nIt follows that the focus of reasonableness review must be on the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome. The role of courts in these circumstances is to review, and they are, at least as a general rule, to refrain from deciding the issue themselves. Accordingly, a court applying the reasonableness standard does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem. The Federal Court of Appeal noted in Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171, that, “as reviewing judges, we do not make our own yardstick and then use that yardstick to measure what the administrator did”: para. 28; see also Ryan, at paras. 50-51. Instead, the reviewing court must consider only whether the decision made by the administrative decision maker — including both the rationale for the decision and the outcome to which it led — was unreasonable.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1058,7 +1058,7 @@ "text": "As explained above, where the administrative decision maker has provided written reasons, those reasons are the means by which the decision maker communicates the rationale for its decision. A principled approach to reasonableness review is one which puts those reasons first. A reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with “respectful attention” and seeking to understand the reasoning process followed by the decision maker to arrive at its conclusion: see Dunsmuir, at para. 48, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 286.\n\nDeveloping an understanding of the reasoning that led to the administrative decision enables a reviewing court to assess whether the decision as a whole is reasonable. As we will explain in greater detail below, a reasonable decision is one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker. The reasonableness standard requires that a reviewing court defer to such a decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1076,7 +1076,7 @@ "text": "Attention to the decision maker’s reasons is part of how courts demonstrate respect for the decision-making process: see Dunsmuir, at paras. 47-49. In Dunsmuir, this Court explicitly stated that the court conducting a reasonableness review is concerned with “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes”: para. 47. Reasonableness, according to Dunsmuir, “is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process”, as well as “with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law”: ibid. 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": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1094,7 +1094,7 @@ "text": "This Court’s jurisprudence since Dunsmuir should not be understood as having shifted the focus of reasonableness review away from a concern with the reasoning process and toward a nearly exclusive focus on the outcome of the administrative decision under review. Indeed, that a court conducting a reasonableness review properly considers both the outcome of the decision and the reasoning process that led to that outcome was recently reaffirmed in Delta Air Lines Inc. v. Lukács, 2018 SCC 2, [2018] 1 S.C.R. 6, at para. 12. In that case, although the outcome of the decision at issue may not have been unreasonable in the circumstances, the decision was set aside because the outcome had been arrived at on the basis of an unreasonable chain of analysis. This approach is consistent with the direction in Dunsmuir that judicial review is concerned with both outcome and process. To accept otherwise would undermine, rather than demonstrate respect toward, the institutional role of the administrative decision maker. C. Reasonableness Is a Single Standard That Accounts for Context", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1112,7 +1112,7 @@ "text": "In any attempt to develop a coherent and unified approach to judicial review, the sheer variety of decisions and decision makers that such an approach must account for poses an inescapable challenge. The administrative decision makers whose decisions may be subject to judicial review include specialized tribunals exercising adjudicative functions, independent regulatory bodies, ministers, front-line decision makers, and more. Their decisions vary in complexity and importance, ranging from the routine to the life-altering. These include matters of “high policy” on the one hand and “pure law” on the other. Such decisions will sometimes involve complex technical considerations. At other times, common sense and ordinary logic will suffice.\n\nDespite this diversity, reasonableness remains a single standard, and elements of a decision’s context do not modulate the standard or the degree of scrutiny by the reviewing court. Instead, the particular context of a decision constrains what will be reasonable for an administrative decision maker to decide in a given case. This is what it means to say that “[r]easonableness is a single standard that takes its colour from the context”: Khosa, at para. 59; Catalyst, at para. 18; Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at para. 44; Wilson, at para. 22, per Abella J.; Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80, at para. 57, per Côté J., dissenting but not on this point; Law Society of British Columbia v. Trinity Western University, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 53.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1130,7 +1130,7 @@ "text": "The approach to reasonableness review that we articulate in these reasons accounts for the diversity of administrative decision making by recognizing that what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review. These contextual constraints dictate the limits and contours of the space in which the decision maker may act and the types of solutions it may adopt. The fact that the contextual constraints operating on an administrative decision maker may vary from one decision to another does not pose a problem for the reasonableness standard, because each decision must be both justified by the administrative body and evaluated by reviewing courts in relation to its own particular context. D. Formal Reasons for a Decision Should Be Read in Light of the Record and With Due Sensitivity to the Administrative Setting in Which They Were Given\n\nA reviewing court must bear in mind that the written reasons given by an administrative body must not be assessed against a standard of perfection. That the reasons given for a decision do “not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred” is not on its own a basis to set the decision aside: Newfoundland Nurses, at para. 16. The review of an administrative decision can be divorced neither from the institutional context in which the decision was made nor from the history of the proceedings.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1148,7 +1148,7 @@ "text": "Administrative decision makers cannot always be expected to deploy the same array of legal techniques that might be expected of a lawyer or judge — nor will it always be necessary or even useful for them to do so. Instead, the concepts and language employed by administrative decision makers will often be highly specific to their fields of experience and expertise, and this may impact both the form and content of their reasons. These differences are not necessarily a sign of an unreasonable decision — indeed, they may be indicative of a decision maker’s strength within its particular and specialized domain. “Administrative justice” will not always look like “judicial justice”, and reviewing courts must remain acutely aware of that fact.\n\nAn administrative decision maker may demonstrate through its reasons that a given decision was made by bringing that institutional expertise and experience to bear: see Dunsmuir, at para. 49. In conducting reasonableness review, judges should be attentive to the application by decision makers of specialized knowledge, as demonstrated by their reasons. Respectful attention to a decision maker’s demonstrated expertise may reveal to a reviewing court that an outcome that might be puzzling or counterintuitive on its face nevertheless accords with the purposes and practical realities of the relevant administrative regime and represents a reasonable approach given the consequences and the operational impact of the decision. This demonstrated experience and expertise may also explain why a given issue is treated in less detail.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1166,7 +1166,7 @@ "text": "The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.\n\nThat being said, reviewing courts must keep in mind the principle that the exercise of public power must be justified, intelligible and transparent, not in the abstract, but to the individuals subject to it. It would therefore be unacceptable for an administrative decision maker to provide an affected party formal reasons that fail to justify its decision, but nevertheless expect that its decision would be upheld on the basis of internal records that were not available to that party.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1184,7 +1184,7 @@ "text": "Where, even if the reasons given by an administrative decision maker for a decision are read with sensitivity to the institutional setting and in light of the record, they contain a fundamental gap or reveal that the decision is based on an unreasonable chain of analysis, it is not ordinarily appropriate for the reviewing court to fashion its own reasons in order to buttress the administrative decision. Even if the outcome of the decision could be reasonable under different circumstances, it is not open to a reviewing court to disregard the flawed basis for a decision and substitute its own justification for the outcome: Delta Air Lines, at paras. 26-28. To allow a reviewing court to do so would be to allow an administrative decision maker to abdicate its responsibility to justify to the affected party, in a manner that is transparent and intelligible, the basis on which it arrived at a particular conclusion. This would also amount to adopting an approach to reasonableness review focused solely on the outcome of a decision, to the exclusion of the rationale for that decision. To the extent that cases such as Newfoundland Nurses and Alberta Teachers have been taken as suggesting otherwise, such a view is mistaken.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1202,7 +1202,7 @@ "text": "Indeed, Newfoundland Nurses is far from holding that a decision maker’s grounds or rationale for a decision is irrelevant. It instead tells us that close attention must be paid to a decision maker’s written reasons and that they must be read holistically and contextually, for the very purpose of understanding the basis on which a decision was made. We agree with the observations of Rennie J. in Komolafe v. Canada (Minister of Citizenship and Immigration), 2013 FC 431, 16 Imm. L.R. (4th) 267, at para. 11: Newfoundland Nurses is not an open invitation to the Court to provide reasons that were not given, nor is it licence to guess what findings might have been made or to speculate as to what the tribunal might have been thinking. This is particularly so where the reasons are silent on a critical issue. It is ironic that Newfoundland Nurses, a case which at its core is about deference and standard of review, is urged as authority for the supervisory court to do the task that the decision maker did not do, to supply the reasons that might have been given and make findings of fact that were not made. This is to turn the jurisprudence on its head. Newfoundland Nurses allows reviewing courts to connect the dots on the page where the lines, and the direction they are headed, may be readily drawn.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1220,7 +1220,7 @@ "text": "As for Alberta Teachers, it concerned a very specific and exceptional circumstance in which the reviewing court had exercised its discretion to consider a question of statutory interpretation on judicial review, even though that question had not been raised before the administrative decision maker and, as a result, no reasons had been given on that issue: paras. 22-26. Furthermore, it was agreed that the ultimate decision maker — the Information and Privacy Commissioner’s delegate — had applied a well-established interpretation of the statutory provision in question and that, had she been asked for reasons to justify her interpretation, she would have adopted reasons the Commissioner had given in past decisions. In other words, the reasons of the Commissioner that this Court relied on to find that the administrative decision was reasonable were not merely reasons that could have been offered, in an abstract sense, but reasons that would have been offered had the issue been raised before the decision maker. Far from suggesting in Alberta Teachers that reasonableness review is concerned primarily with outcome, as opposed to rationale, this Court rejected the position that a reviewing court is entitled to “reformulate a tribunal’s decision in a way that casts aside an unreasonable chain of analysis in favour of the court’s own rationale for the result”: para. 54, quoting Petro-Canada v. British Columbia (Workers’ Compensation Board), 2009 BCCA 396, 276 B.C.A.C. 135, at paras. 53 and 56.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1238,7 +1238,7 @@ "text": "In Alberta Teachers, this Court also reaffirmed the importance of giving proper reasons and reiterated that “deference under the reasonableness standard is best given effect when administrative decision makers provide intelligible and transparent justification for their decisions, and when courts ground their review of the decision in the reasons provided”: para. 54. Where a decision maker’s rationale for an essential element of the decision is not addressed in the reasons and cannot be inferred from the record, the decision will generally fail to meet the requisite standard of justification, transparency and intelligibility. E. A Reasonable Decision Is One That Is Both Based on an Internally Coherent Reasoning and Justified in Light of the Legal and Factual Constraints That Bear on the Decision\n\nA reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whether the decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision: Dunsmuir, at paras. 47 and 74; Catalyst, at para. 13.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1256,7 +1256,7 @@ "text": "The burden is on the party challenging the decision to show that it is unreasonable. Before a decision can be set aside on this basis, the reviewing court must be satisfied that there are sufficiently serious shortcomings in the decision such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency. Any alleged flaws or shortcomings must be more than merely superficial or peripheral to the merits of the decision. It would be improper for a reviewing court to overturn an administrative decision simply because its reasoning exhibits a minor misstep. Instead, the court must be satisfied that any shortcomings or flaws relied on by the party challenging the decision are sufficiently central or significant to render the decision unreasonable.\n\nWhat makes a decision unreasonable? We find it conceptually useful here to consider two types of fundamental flaws. The first is a failure of rationality internal to the reasoning process. The second arises when a decision is in some respect untenable in light of the relevant factual and legal constraints that bear on it. There is, however, no need for reviewing courts to categorize failures of reasonableness as belonging to one type or the other. Rather, we use these descriptions simply as a convenient way to discuss the types of issues that may show a decision to be unreasonable. (1) A Reasonable Decision Is Based on an Internally Coherent Reasoning", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1274,7 +1274,7 @@ "text": "To be reasonable, a decision must be based on reasoning that is both rational and logical. It follows that a failure in this respect may lead a reviewing court to conclude that a decision must be set aside. Reasonableness review is not a “line-by-line treasure hunt for error”: Irving Pulp & Paper, at para. 54, citing Newfoundland Nurses, at para. 14. However, the reviewing court must be able to trace the decision maker’s reasoning without encountering any fatal flaws in its overarching logic, and it must be satisfied that “there is [a] line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”: Ryan, at para. 55; Southam, at para. 56. Reasons that “simply repeat statutory language, summarize arguments made, and then state a peremptory conclusion” will rarely assist a reviewing court in understanding the rationale underlying a decision and “are no substitute for statements of fact, analysis, inference and judgment”: R. A. Macdonald and D. Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123, at p. 139; see also Gonzalez v. Canada (Minister of Citizenship and Immigration), 2014 FC 750, 27 Imm. L.R. (4th) 151, at paras. 57-59.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1292,7 +1292,7 @@ "text": "While, as we indicated earlier (at paras. 89-96), formal reasons should be read in light of the record and with due sensitivity to the administrative regime in which they were given, a decision will be unreasonable if the reasons for it, read holistically, fail to reveal a rational chain of analysis or if they reveal that the decision was based on an irrational chain of analysis: see Wright v. Nova Scotia (Human Rights Commission), 2017 NSSC 11, 23 Admin. L.R. (6th) 110; Southam, at para. 56. A decision will also be unreasonable where the conclusion reached cannot follow from the analysis undertaken (see Sangmo v. Canada (Minister of Citizenship and Immigration), 2016 FC 17, at para. 21 (CanLII)) or if the reasons read in conjunction with the record do not make it possible to understand the decision maker’s reasoning on a critical point (see Blas v. Canada (Minister of Citizenship and Immigration), 2014 FC 629, 26 Imm. L.R. (4th) 92, at paras. 54-66; Reid v. Criminal Injuries Compensation Board, 2015 ONSC 6578; Lloyd v. Canada (Attorney General), 2016 FCA 115, 2016 D.T.C. 5051; Taman v. Canada (Attorney General), 2017 FCA 1, [2017] 3 F.C.R. 520, at para. 47).\n\nSimilarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”. (2) A Reasonable Decision Is Justified in Light of the Legal and Factual Constraints That Bear on the Decision", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1310,7 +1310,7 @@ "text": "In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.\n\nIt is unnecessary to catalogue all of the legal or factual considerations that could constrain an administrative decision maker in a particular case. However, in the sections that follow, we discuss a number of elements that will generally be relevant in evaluating whether a given decision is reasonable, namely: the governing statutory scheme; other relevant statutory or common law; the principles of statutory interpretation; the evidence before the decision maker and facts of which the decision maker may take notice; the submissions of the parties; the past practices and decisions of the administrative body; and the potential impact of the decision on the individual to whom it applies. These elements are not a checklist for conducting reasonableness review, and they may vary in significance depending on the context. They are offered merely to highlight some elements of the surrounding context that can cause a reviewing court to lose confidence in the outcome reached.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1328,7 +1328,7 @@ "text": "A reviewing court may find that a decision is unreasonable when examined against these contextual considerations. These elements necessarily interact with one another: for example, a reasonable penalty for professional misconduct in a given case must be justified both with respect to the types of penalties prescribed by the relevant legislation and with respect to the nature of the underlying misconduct. (a) Governing Statutory Scheme", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1346,7 +1346,7 @@ "text": "Because administrative decision makers receive their powers by statute, the governing statutory scheme is likely to be the most salient aspect of the legal context relevant to a particular decision. That administrative decision makers play a role, along with courts, in elaborating the precise content of the administrative schemes they administer should not be taken to mean that administrative decision makers are permitted to disregard or rewrite the law as enacted by Parliament and the provincial legislatures. Thus, for example, 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, at paras. 15 and 25-28; see also Green, at para. 44. As Rand J. noted in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is no such thing as absolute and untrammelled ‘discretion’”, and any exercise of discretion must accord with the purposes for which it was given: see also Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 7; Montréal (City) v. Montreal Port Authority, 2010 SCC 14, [2010] 1 S.C.R. 427, at paras. 32-33; Nor-Man Regional Health Authority, at para. 6. 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 Limited, 2010 FCA 193, [2011] 4 F.C.R. 203, at paras. 38-40.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1364,7 +1364,7 @@ "text": "The statutory scheme also informs the acceptable approaches to decision making: for example, where a decision maker is given wide discretion, it would be unreasonable for it to fetter that discretion: see Delta Air Lines, at para. 18.\n\nAs stated above, a proper application of the reasonableness standard is capable of allaying the concern that an administrative decision maker might interpret the scope of its own authority beyond what the legislature intended. As a result, there is no need to maintain a category of “truly” jurisdictional questions that are subject to correctness review. Although a decision maker’s interpretation of its statutory grant of authority is generally entitled to deference, the decision maker must nonetheless properly justify that interpretation. Reasonableness review does not allow administrative decision makers to arrogate powers to themselves that they were never intended to have, and an administrative body cannot exercise authority which was not delegated to it. Contrary to our colleagues’ concern (at para. 285), this does not reintroduce the concept of “jurisdictional error” into judicial review, but merely identifies one of the obvious and necessary constraints imposed on administrative decision makers.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1382,7 +1382,7 @@ "text": "Whether an interpretation is justified will depend on the context, including the language chosen by the legislature in describing the limits and contours of the decision maker’s authority. If a legislature wishes to precisely circumscribe an administrative decision maker’s power in some respect, it can do so by using precise and narrow language and delineating the power in detail, thereby tightly constraining the decision maker’s ability to interpret the provision. Conversely, where the legislature chooses to use broad, open-ended or highly qualitative language — for example, “in the public interest” — it clearly contemplates that the decision maker is to have greater flexibility in interpreting the meaning of such language. Other language will fall in the middle of this spectrum. All of this is to say that certain questions relating to the scope of a decision maker’s authority may support more than one interpretation, while other questions may support only one, depending upon the text by which the statutory grant of authority is made. What matters is whether, in the eyes of the reviewing court, the decision maker has properly justified its interpretation of the statute in light of the surrounding context. It will, of course, be impossible for an administrative decision maker to justify a decision that strays beyond the limits set by the statutory language it is interpreting. (b) Other Statutory or Common Law", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1400,7 +1400,7 @@ "text": "It is evident that both statutory and common law will impose constraints on how and what an administrative decision maker can lawfully decide: see Dunsmuir, at paras. 47 and 74. For example, an administrative decision maker interpreting the scope of its regulation-making authority in order to exercise that authority cannot adopt an interpretation that is inconsistent with applicable common law principles regarding the nature of statutory powers: see Katz Group Canada Inc. v. Ontario (Health and Long‑Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at paras. 45-48. Neither can a body instructed by legislation to determine what tax rate is applicable in accordance with an existing tax system ignore that system and base its determination on a “fictitious” system it has arbitrarily created: Montréal (City), at para. 40. Where a relationship is governed by private law, it would be unreasonable for a decision maker to ignore that law in adjudicating parties’ rights within that relationship: Dunsmuir, at para. 74. Similarly, where the governing statute specifies a standard that is well known in law and in the jurisprudence, a reasonable decision will generally be one that is consistent with the established understanding of that standard: see, e.g., the discussion of “reasonable grounds to suspect” in Canada (Transport, Infrastructure and Communities) v. Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006, at paras. 93-98.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1418,7 +1418,7 @@ "text": "Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramifications of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146. There may be circumstances in which it is quite simply unreasonable for an administrative decision maker to fail to apply or interpret a statutory provision in accordance with a binding precedent. For instance, where an immigration tribunal is required to determine whether an applicant’s act would constitute a criminal offence under Canadian law (see, e.g., Immigration and Refugee Protection Act , S.C. 2001, c. 27, ss. 35 to 37 ), it would clearly not be reasonable for the tribunal to adopt an interpretation of a criminal law provision that is inconsistent with how Canadian criminal courts have interpreted it.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1436,7 +1436,7 @@ "text": "That being said, administrative decision makers will not necessarily be required to apply equitable and common law principles in the same manner as courts in order for their decisions to be reasonable. For example, it may be reasonable for a decision maker to adapt a common law or equitable doctrine to its administrative context: see Nor-Man Regional Health Authority, at paras. 5-6, 44-45, 52, 54 and 60. Conversely, a decision maker that rigidly applies a common law doctrine without adapting it to the relevant administrative context may be acting unreasonably: see Delta Air Lines, at paras. 16-17 and 30. In short, whether an administrative decision maker has acted reasonably in adapting a legal or equitable doctrine involves a highly context-specific determination.\n\nWe would also note that in some administrative decision making contexts, international law will operate as an important constraint on an administrative decision maker. It is well established that 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”: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, at para. 40. Since Baker, it has also been clear that international treaties and conventions, even where they have not been implemented domestically by statute, can help to inform whether a decision was a reasonable exercise of administrative power: Baker, at paras. 69-71. (c) Principles of Statutory Interpretation", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1454,7 +1454,7 @@ "text": "Matters of statutory interpretation are not treated uniquely and, as with other questions of law, may be evaluated on a reasonableness standard. Although the general approach to reasonableness review described above applies in such cases, we recognize that it is necessary to provide additional guidance to reviewing courts on this point. This is because reviewing courts are accustomed to resolving questions of statutory interpretation in a context in which the issue is before them at first instance or on appeal, and where they are expected to perform their own independent analysis and come to their own conclusions.\n\nReasonableness review functions differently. Where reasonableness is the applicable standard on a question of statutory interpretation, the reviewing court does not undertake a de novo analysis of the question or “ask itself what the correct decision would have been”: Ryan, at para. 50. Instead, just as it does when applying the reasonableness standard in reviewing questions of fact, discretion or policy, the court must examine the administrative decision as a whole, including the reasons provided by the decision maker and the outcome that was reached.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1472,7 +1472,7 @@ "text": "A court interpreting a statutory provision does so by applying the “modern principle” of statutory interpretation, that is, that the words of a statute must 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”: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 21, and Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26, both quoting E. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87. Parliament and the provincial legislatures have also provided guidance by way of statutory rules that explicitly govern the interpretation of statutes and regulations: see, e.g., Interpretation Act , R.S.C. 1985, c. I-21 .\n\nThis Court has adopted the “modern principle” as the proper approach to statutory interpretation, because legislative intent can be understood only by reading the language chosen by the legislature in light of the purpose of the provision and the entire relevant context: Sullivan, at pp. 7-8. Those who draft and enact statutes expect that questions about their meaning will be resolved by an analysis that has regard to the text, context and purpose, regardless of whether the entity tasked with interpreting the law is a court or an administrative decision maker. An approach to reasonableness review that respects legislative intent must therefore assume that those who interpret the law — whether courts or administrative decision makers — will do so in a manner consistent with this principle of interpretation.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1490,7 +1490,7 @@ "text": "Administrative decision makers are not required to engage in a formalistic statutory interpretation exercise in every case. As discussed above, formal reasons for a decision will not always be necessary and may, where required, take different forms. And even where the interpretive exercise conducted by the administrative decision maker is set out in written reasons, it may look quite different from that of a court. The specialized expertise and experience of administrative decision makers may sometimes lead them to rely, in interpreting a provision, on considerations that a court would not have thought to employ but that actually enrich and elevate the interpretive exercise.\n\nBut whatever form the interpretive exercise takes, the merits of an administrative decision maker’s interpretation of a statutory provision must be consistent with the text, context and purpose of the provision. In this sense, the usual principles of statutory interpretation apply equally when an administrative decision maker interprets a provision. Where, for example, the words used are “precise and unequivocal”, their ordinary meaning will usually play a more significant role in the interpretive exercise: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601, at para. 10. Where the meaning of a statutory provision is disputed in administrative proceedings, the decision maker must demonstrate in its reasons that it was alive to these essential elements.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1508,7 +1508,7 @@ "text": "The administrative decision maker’s task is to interpret the contested provision in a manner consistent with the text, context and purpose, applying its particular insight into the statutory scheme at issue. It cannot adopt an interpretation it knows to be inferior — albeit plausible — merely because the interpretation in question appears to be available and is expedient. The decision maker’s responsibility is to discern meaning and legislative intent, not to “reverse-engineer” a desired outcome.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1526,7 +1526,7 @@ "text": "It can happen that an administrative decision maker, in interpreting a statutory provision, fails entirely to consider a pertinent aspect of its text, context or purpose. Where such an omission is a minor aspect of the interpretive context, it is not likely to undermine the decision as a whole. It is well established that decision makers are not required “to explicitly address all possible shades of meaning” of a given provision: Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, at para. 3. Just like judges, administrative decision makers may find it unnecessary to dwell on each and every signal of statutory intent in their reasons. In many cases, it may be necessary to touch upon only the most salient aspects of the text, context or purpose. If, however, it is clear that the administrative decision maker may well, had it considered a key element of a statutory provision’s text, context or purpose, have arrived at a different result, its failure to consider that element would be indefensible, and unreasonable in the circumstances. Like other aspects of reasonableness review, omissions are not stand-alone grounds for judicial intervention: the key question is whether the omitted aspect of the analysis causes the reviewing court to lose confidence in the outcome reached by the decision maker.\n\nThere may be other cases in which the administrative decision maker has not explicitly considered the meaning of a relevant provision in its reasons, but the reviewing court is able to discern the interpretation adopted by the decision maker from the record and determine whether that interpretation is reasonable.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1544,7 +1544,7 @@ "text": "Finally, even though the task of a court conducting a reasonableness review is not to perform a de novo analysis or to determine the “correct” interpretation of a disputed provision, it may sometimes become clear in the course of reviewing a decision that the interplay of text, context and purpose leaves room for a single reasonable interpretation of the statutory provision, or aspect of the statutory provision, that is at issue: Dunsmuir, at paras. 72-76. One case in which this conclusion was reached was Nova Tube Inc./Nova Steel Inc. v. Conares Metal Supply Ltd., 2019 FCA 52, in which Laskin J.A., after analyzing the reasoning of the administrative decision maker (at paras. 26-61 (CanLII)), held that the decision maker’s interpretation had been unreasonable, and, furthermore, that the factors he had considered in his analysis weighed so overwhelmingly in favour of the opposite interpretation that that was the only reasonable interpretation of the provision: para. 61. As discussed below, it would serve no useful purpose in such a case to remit the interpretative question to the original decision maker. Even so, a court should generally pause before definitively pronouncing upon the interpretation of a provision entrusted to an administrative decision maker. (d) Evidence Before the Decision Maker", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1562,7 +1562,7 @@ "text": "It is trite law that the decision maker may assess and evaluate the evidence before it and that, absent exceptional circumstances, a reviewing court will not interfere with its factual findings. The reviewing court must refrain from “reweighing and reassessing the evidence considered by the decision maker”: CHRC, at para. 55; see also Khosa, at para. 64; Dr. Q, at paras. 41-42. Indeed, many of the same reasons that support an appellate court’s deferring to a lower court’s factual findings, including the need for judicial efficiency, the importance of preserving certainty and public confidence, and the relatively advantageous position of the first instance decision maker, apply equally in the context of judicial review: see Housen, at paras. 15-18; Dr. Q, at para. 38; Dunsmuir, at para. 53.\n\nThat being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, at 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: ibid. (e) Submissions of the Parties", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1580,7 +1580,7 @@ "text": "The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully account for the central issues and concerns raised by the parties. The principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard: Baker, at para. 28. The concept of responsive reasons is inherently bound up with this principle, because reasons are the primary mechanism by which decision makers demonstrate that they have actually listened to the parties.\n\nReviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis” (Newfoundland Nurses, at para. 25), or to “make an explicit finding on each constituent element, however subordinate, leading to its final conclusion” (para. 16). To impose such expectations would have a paralyzing effect on the proper functioning of administrative bodies and would needlessly compromise important values such as efficiency and access to justice. However, a decision maker’s failure 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. In addition to assuring parties that their concerns have been heard, the process of drafting reasons with care and attention can alert the decision maker to inadvertent gaps and other flaws in its reasoning: Baker, at para. 39. (f) Past Practices and Past Decisions", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1598,7 +1598,7 @@ "text": "Administrative decision makers are not bound by their previous decisions in the same sense that courts are bound by stare decisis. As this Court noted in Domtar, “a lack of unanimity is the price to pay for the decision‑making freedom and independence” given to administrative decision makers, and the mere fact that some conflict exists among an administrative body’s decisions does not threaten the rule of law: p. 800. Nevertheless, administrative decision makers and reviewing courts alike must be concerned with the general consistency of administrative decisions. Those affected by administrative decisions are entitled to expect that like cases will generally be treated alike and that outcomes will not depend merely on the identity of the individual decision maker — expectations that do not evaporate simply because the parties are not before a judge.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1616,7 +1616,7 @@ "text": "Fortunately, administrative bodies generally have a range of resources at their disposal to address these types of concerns. Access to past reasons and summaries of past reasons enables multiple individual decision makers within a single organization (such as administrative tribunal members) to learn from each other’s work, and contributes to a harmonized decision-making culture. Institutions also routinely rely on standards, policy directives and internal legal opinions to encourage greater uniformity and guide the work of frontline decision makers. This Court has also held that plenary meetings of a tribunal’s members can be an effective tool to “foster coherence” and “avoid . . . conflicting results”: IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282, at pp. 324-28. Where disagreement arises within an administrative body about how to appropriately resolve a given issue, that institution may also develop strategies to address that divergence internally and on its own initiative. Of course, consistency can also be encouraged through less formal methods, such as the development of training materials, checklists and templates for the purpose of streamlining and strengthening institutional best practices, provided that these methods do not operate to fetter decision making.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1634,7 +1634,7 @@ "text": "Whether a particular decision is consistent with the administrative body’s past decisions is also a constraint that the reviewing court should consider when determining whether an administrative decision is reasonable. Where a decision maker does depart from longstanding practices or established internal authority, it bears the justificatory burden of explaining that departure in its reasons. If the decision maker does not satisfy this burden, the decision will be unreasonable. In this sense, the legitimate expectations of the parties help to determine both whether reasons are required and what those reasons must explain: Baker, at para. 26. 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": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1652,7 +1652,7 @@ "text": "As discussed above, it has been argued that correctness review would be required where there is “persistent discord” on questions on law in an administrative body’s decisions. While we are not of the view that such a correctness category is required, we would note that reviewing courts have a role to play in managing the risk of persistently discordant or contradictory legal interpretations within an administrative body’s decisions. When evidence of internal disagreement on legal issues has been put before a reviewing court, the court may find it appropriate to telegraph the existence of an issue in its reasons and encourage the use of internal administrative structures to resolve the disagreement. And if internal disagreement continues, it may become increasingly difficult for the administrative body to justify decisions that serve only to preserve the discord. (g) Impact of the Decision on the Affected Individual", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1670,7 +1670,7 @@ "text": "It is well established that individuals are entitled to greater procedural protection when the decision in question involves the potential for significant personal impact or harm: Baker, at para. 25. However, this principle also has implications for how a court conducts reasonableness review. Central to the necessity of adequate justification is the perspective of the individual or party over whom authority is being exercised. 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. This includes decisions with consequences that threaten an individual’s life, liberty, dignity or livelihood.\n\nMoreover, concerns regarding arbitrariness will generally be more acute in cases where the consequences of the decision for the affected party are particularly severe or harsh, and a failure to grapple with such consequences may well be unreasonable. For example, this Court has held that the Immigration Appeal Division should, when exercising its equitable jurisdiction to stay a removal order under the Immigration and Refugee Protection Act , consider the potential foreign hardship a deported person would face: Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1688,7 +1688,7 @@ "text": "Many administrative decision makers are entrusted with an extraordinary degree of power over the lives of ordinary people, including the most vulnerable among us. The corollary to that power is a heightened responsibility on the part of administrative decision makers to ensure that their reasons demonstrate that they have considered the consequences of a decision and that those consequences are justified in light of the facts and law. F. Review in the Absence of Reasons\n\nWhere the duty of procedural fairness or the legislative scheme mandates that reasons be given to the affected party but none have been given, this failure will generally require the decision to be set aside and the matter remitted to the decision maker: see, e.g., Congrégation des témoins de Jéhovah de St-Jérôme-Lafontaine, at para. 35. Also, where reasons are provided but they fail to provide a transparent and intelligible justification as explained above, the decision will be unreasonable. In many cases, however, neither the duty of procedural fairness nor the statutory scheme will require that formal reasons be given at all: Baker, at para. 43.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1706,7 +1706,7 @@ "text": "Admittedly, applying an approach to judicial review that prioritizes the decision maker’s justification for its decisions can be challenging in cases in which formal reasons have not been provided. This will often occur where the decision-making process does not easily lend itself to producing a single set of reasons, for example, where a municipality passes a bylaw or a law society renders a decision by holding a vote: see, e.g., Catalyst; Green; Trinity Western University. However, even in such circumstances, the reasoning process that underlies the decision will not usually be opaque. It is important to recall that a reviewing court must look to the record as a whole to understand the decision, and that in doing so, the court will often uncover a clear rationale for the decision: Baker, at para. 44. For example, as McLachlin C.J. noted in Catalyst, “[t]he reasons for a municipal bylaw are traditionally deduced from the debate, deliberations and the statements of policy that give rise to the bylaw”: para. 29. In that case, not only were “the reasons [in the sense of rationale] for the bylaw . . . clear to everyone”, they had also been laid out in a five-year plan: para. 33. Conversely, even without reasons, it is possible for the record and the context to reveal that a decision was made on the basis of an improper motive or for another impermissible reason, as, for example, in Roncarelli.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1724,7 +1724,7 @@ "text": "There will nonetheless be situations in which no reasons have been provided and neither the record nor the larger context sheds light on the basis for the decision. In such a case, the reviewing court must still examine the decision in light of the relevant constraints on the decision maker in order to determine whether the decision is reasonable. But it is perhaps inevitable that without reasons, the analysis will then focus on the outcome rather than on the decision maker’s reasoning process. This does not mean that reasonableness review is less robust in such circumstances, only that it takes a different shape. G. A Note on Remedial Discretion\n\nWhere a court reviews an administrative decision, the question of the appropriate remedy is multi-faceted. It engages considerations that include the reviewing court’s common law or statutory jurisdiction and the great diversity of elements that may influence a court’s decision to exercise its discretion in respect of available remedies. While we do not aim to comprehensively address here the issue of remedies on judicial review, we do wish to briefly address the question of whether a court that quashes an unreasonable decision should exercise its discretion to remit the matter to the decision maker for reconsideration with the benefit of the court’s reasons.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1742,7 +1742,7 @@ "text": "Where the reasonableness standard is applied in conducting a judicial review, the choice of remedy must be guided by the rationale for applying that standard to begin with, including the recognition by the reviewing court that the legislature has entrusted the matter to the administrative decision maker, and not to the court, to decide: see Delta Air Lines, at para. 31. However, the question of remedy must also be guided by concerns related to the proper administration of the justice system, the need to ensure access to justice and “the goal of expedient and cost-efficient decision making, which often motivates the creation of specialized administrative tribunals in the first place”: Alberta Teachers, at para. 55.\n\nGiving effect to these principles in the remedial context means that where a decision reviewed by applying the reasonableness standard cannot be upheld, it will most often be appropriate to remit the matter to the decision maker to have it reconsider the decision, this time with the benefit of the court’s reasons. In reconsidering its decision, the decision maker may arrive at the same, or a different, outcome: see Delta Air Lines, at paras. 30-31.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1760,7 +1760,7 @@ "text": "However, while courts should, as a general rule, respect the legislature’s intention to entrust the matter to the administrative decision maker, there are limited scenarios in which remitting the matter would stymie the timely and effective resolution of matters in a manner that no legislature could have intended: D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167, at paras. 18-19. An intention that the administrative decision maker decide the matter at first instance cannot give rise to an endless merry-go-round of judicial reviews and subsequent reconsiderations. Declining to remit a matter to the decision maker may be appropriate where it becomes evident to the court, in the course of its review, that a particular outcome is inevitable and that remitting the case would therefore serve no useful purpose: see Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, at pp. 228-30; Renaud v. Quebec (Commission des affaires sociales), [1999] 3 S.C.R. 855; Groia v. Law Society of Upper Canada, 2018 SCC 27, [2018] 1 S.C.R. 772, at para. 161; Sharif v. Canada (Attorney General), 2018 FCA 205, 50 C.R. (7th) 1, at paras. 53-54; Maple Lodge Farms Ltd. v. Canadian Food Inspection Agency, 2017 FCA 45, 411 D.L.R. (4th) 175, at paras. 51-56 and 84; Gehl v. Canada (Attorney General), 2017 ONCA 319, 138 O.R. (3d) 52, at paras. 54 and 88.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1778,7 +1778,7 @@ "text": "Elements like concern for delay, fairness to the parties, urgency of providing a resolution to the dispute, the nature of the particular regulatory regime, whether the administrative decision maker had a genuine opportunity to weigh in on the issue in question, costs to the parties, and the efficient use of public resources may also influence the exercise of a court’s discretion to remit a matter, just as they may influence the exercise of its discretion to quash a decision that is flawed: see MiningWatch Canada v. Canada (Fisheries and Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6, at paras. 45-51; Alberta Teachers, at para. 55. IV. Role of Prior Jurisprudence", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1796,7 +1796,7 @@ "text": "Given that this appeal and its companion cases involve a recalibration of the governing approach to the choice of standard of review analysis and a clarification of the proper application of the reasonableness standard, it will be necessary to briefly address how the existing administrative law jurisprudence should be treated going forward. These reasons set out a holistic revision of the framework for determining the applicable standard of review. A court seeking to determine what standard is appropriate in a case before it should look to these reasons first in order to determine how this general framework applies to that case. Doing so may require the court to resolve subsidiary questions on which past precedents will often continue to provide helpful guidance. Indeed, much of the Court’s jurisprudence, such as cases concerning general questions of law of central importance to the legal system as a whole or those relating to jurisdictional boundaries between two or more administrative bodies, will continue to apply essentially without modification. On other issues, certain cases —including those on the effect of statutory appeal mechanisms, “true” questions of jurisdiction or the former contextual analysis — will necessarily have less precedential force. As for cases that dictated how to conduct reasonableness review, they will often continue to provide insight, but should be used carefully to ensure that their application is aligned in principle with these reasons.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1814,7 +1814,7 @@ "text": "This approach strives for future doctrinal stability under the new framework while clarifying the continued relevance of the existing jurisprudence. Where a reviewing court is not certain how these reasons relate to the case before it, it may find it prudent to request submissions from the parties on both the appropriate standard and the application of that standard.\n\nBefore turning to Mr. Vavilov’s case, we pause to note that our colleagues mischaracterize the framework developed in these reasons as being an “encomium” for correctness, and a turn away from the Court’s deferential approach to the point of being a “eulogy” for deference (at paras. 199 and 201). With respect, this is a gross exaggeration. Assertions that these reasons adopt a formalistic, court-centric view of administrative law (at paras. 229 and 240), enable an unconstrained expansion of correctness review (at para. 253) or function as a sort of checklist for “line-by-line” reasonableness review (at para. 284), are counter to the clear wording we use and do not take into consideration the delicate balance that we have accounted for in setting out this framework. V. Mr. Vavilov’s Application for Judicial Review", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1832,7 +1832,7 @@ "text": "The case at bar involves an application for judicial review of a decision made by the Canadian Registrar of Citizenship on August 15, 2014. The Registrar’s decision concerned Mr. Vavilov, who was born in Canada and whose parents were later revealed to be undercover Russian spies. The Registrar determined that Mr. Vavilov was not a Canadian citizen on the basis of an interpretation of s. 3(2) (a) of the Citizenship Act and cancelled his certificate of citizenship under s. 26(3) of the Citizenship Regulations. We conclude that the standard of review applicable to the Registrar’s decision is reasonableness, and that the Registrar’s decision was unreasonable. We would uphold the decision of the Federal Court of Appeal to quash the Registrar’s decision and would not remit the matter to the Registrar for redetermination. A. Facts\n\nMr. Vavilov was born in Toronto as Alexander Foley on June 3, 1994. At the time of his birth, his parents were posing as Canadians under the assumed names of Tracey Lee Ann Foley and Donald Howard Heathfield. In reality, they were Elena Vavilova and Andrey Bezrukov, two foreign nationals working on a long-term assignment for the Russian foreign intelligence service, the SVR. Their false Canadian identities had been assumed prior to the birth of Mr. Vavilov and of his older brother, Timothy, for purposes of a “deep cover” espionage network under the direction of the SVR. The United States Department of Justice refers to it as the “illegals” program.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1850,7 +1850,7 @@ "text": "Ms. Vavilova and Mr. Bezrukov were deployed to Canada to establish false personal histories as Western citizens. They worked, ran a business, pursued higher education and, as noted, had two children here. After their second son was born, the family moved to France, and later to the United States. In the United States, Mr. Bezrukov obtained a Masters of Public Administration at Harvard University and worked as a consultant, all while working to collect information on a variety of sensitive national security issues for the SVR. The nature of the undercover work of Ms. Vavilova and Mr. Bezrukov meant that there was no point at which either of them had any publicly acknowledged affiliation with the Russian state, held any official diplomatic or consular status, or had been granted any diplomatic privilege or immunity.\n\nUntil he was about 16 years old, Mr. Vavilov did not know that his parents were not who they claimed to be. He believed that he was a Canadian citizen by birth, lived and identified as a Canadian, held a Canadian passport, learned both official languages and was proud of his heritage. His parents’ true identities became known to him on June 27, 2010, when they were arrested in the United States and charged (along with several other individuals) with conspiracy to act as unregistered agents of a foreign government. On July 8, 2010, they pled guilty, admitted their status as Russian citizens acting on behalf of the Russian state, and were returned to Russia in a “spy swap” the following day. Mr. Vavilov has described the revelation as a traumatic event characterized by disbelief and a crisis of identity.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1868,7 +1868,7 @@ "text": "Just prior to his parents’ deportation, Mr. Vavilov left the United States with his brother on a trip that had been planned before their parents’ arrest, going first to Paris, and then to Russia on a tourist visa. In October 2010, Mr. Vavilov unsuccessfully attempted to renew his Canadian passport through the Canadian Embassy in Moscow. Although he submitted to DNA testing and changed his surname from Foley to Vavilov at the behest of passport authorities, his second attempt to obtain a Canadian passport in December 2011 was also unsuccessful. He was then informed that despite his Canadian birth certificate, he would also need to obtain and provide a certificate of Canadian citizenship before he would be issued a passport. Mr. Vavilov applied for that certificate in October 2012, and it was issued to him on January 15, 2013. At that point, he made another passport application through the Canadian Embassy in Buenos Aires, Argentina, and, after a delay, applied for mandamus, a process that was settled out of court in June 2013. The Minister of Citizenship and Immigration undertook to issue a new travel document to Mr. Vavilov by July 19, 2013.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1886,7 +1886,7 @@ "text": "However, Mr. Vavilov never received a passport. Instead, he received a “procedural fairness letter” from the Canadian Registrar of Citizenship dated July 18, 2013 in which the Registrar stated that Mr. Vavilov had not been entitled to a certificate of citizenship, that his certificate of citizenship had been issued in error and that, pursuant to s. 3(2) (a) of the Citizenship Act , he was not a citizen of Canada. Mr. Vavilov was invited to make submissions in response, and he did so. On August 15, 2014, the Registrar formally cancelled Mr. Vavilov’s Canadian citizenship certificate pursuant to s. 26(3) of the Citizenship Regulations. B. Procedural History (1) Registrar’s Decision", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1904,7 +1904,7 @@ "text": "In a brief letter sent to Mr. Vavilov on August 15, 2014, the Registrar informed him that she was cancelling his certificate of citizenship pursuant to s. 26(3) of the Citizenship Regulations on the basis that he was not entitled to it. The Registrar summarized her position as follows: (a) Although Mr. Vavilov was born in Toronto, neither of his parents was a citizen of Canada, and neither of them had been lawfully admitted to Canada for permanent residence at the time of his birth. (b) In 2010, Mr. Vavilov’s parents were convicted of “conspiracy to act in the United States as a foreign agent of a foreign government”, and recognized as unofficial agents working as “illegals” for the SVR. (c) As a result, the Registrar believed that, at the time of Mr. Vavilov’s birth, his parents were “employees or representatives of a foreign government”. (d) Accordingly, pursuant to s. 3(2) (a) of the Citizenship Act , Mr. Vavilov had never been a Canadian citizen and had not been entitled to receive the certificate of Canadian citizenship that had been issued to him in 2013. Section 3(2) (a) provides that s. 3(1) (a) of the Citizenship Act (which grants citizenship by birth to persons born in Canada after February 14, 1977) does not apply to an individual if, at the time of the individual’s birth, neither of their parents was a citizen or lawfully admitted to Canada for permanent residence and either parent was “a diplomatic or consular officer or other representative or employee in Canada of a foreign government.”", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1922,7 +1922,7 @@ "text": "For these reasons, the Registrar cancelled the certificate and indicated that Mr. Vavilov would no longer be recognized as a Canadian citizen. The Registrar’s letter did not offer any analysis or interpretation of s. 3(2) (a) of the Citizenship Act . However, it appears that in coming to her decision, the Registrar relied on a 12-page report prepared by a junior analyst, which included an interpretation of this key statutory provision.\n\nIn that report, the analyst provided a timeline of the procedural history of Mr. Vavilov’s file, a summary of the investigation into and charges against his parents in the United States, and background information on the SVR’s “illegals” program. The analyst also discussed several provisions of the Citizenship Act , including s. 3(2) (a), and it is this aspect of her report that is most relevant to Mr. Vavilov’s application for judicial review. The analyst’s ultimate conclusion was that the certificate of citizenship issued to Mr. Vavilov in January 2013 was issued in error, as his parents had been “working as employees or representatives of a foreign government (the Russian Federation) during the time they resided in Canada, including at the time of Mr. Vavilov’s birth”, and that “[a]s such, Mr. Vavilov was not entitled to receive a citizenship certificate pursuant to paragraph 3(2) (a) of the Citizenship Act ”: A.R., vol. I, at p. 3. The report was dated June 24, 2014.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1940,7 +1940,7 @@ "text": "In discussing the relevant legislation, the analyst cited s. 3(1) (a) of the Citizenship Act , which establishes the general rule that persons born in Canada after February 14, 1977 are Canadian citizens. The analyst also referred to an exception to that general rule set out in s. 3(2) of the Citizenship Act, which reads as follows: (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).\n\nThe analyst noted that s. 3(2)(a) refers both to diplomatic and consular officers and to other representatives or employees of a foreign government. She acknowledged that the term “diplomatic or consular officer” is defined in s. 35(1) of the Interpretation Act and that the definition lists a large number of posts within a foreign mission or consulate. However, the analyst observed that no statutory definition exists for the phrase “other representative or employee in Canada of a foreign government”.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1958,7 +1958,7 @@ "text": "The analyst compared the wording of s. 3(2)(a) with that of a similar provision in predecessor legislation. That provision, s. 5(3)(b) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19, excluded from citizenship children whose “responsible parent” at the time of birth was: (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst reasoned that because s. 3(2)(a) “makes reference to ‘representatives or employees of a foreign government’, but does not link the representatives or employees to ‘attached to or in the service of a foreign diplomatic mission or consulate in Canada’ (as did the earlier version of the provision), it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff’”: A.R., vol. I, at p. 7.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1976,7 +1976,7 @@ "text": "Although the analyst acknowledged that “Ms. Vavilova and Mr. Bezrukov, were employed in Canada by a foreign government without the benefits or protections (i.e.: immunity) that accompany diplomatic, consular, or official status positions”, she concluded that they were nonetheless “unofficial employees or representatives” of Russia at the time of Mr. Vavilov’s birth: A.R., vol. I, at p. 13. The exception in s. 3(2) (a) of the Citizenship Act, as she interpreted it, therefore applied to Mr. Vavilov. As a result, the analyst recommended that the Canadian Registrar of Citizenship “recall” Mr. Vavilov’s certificate on the basis that he was not, and had never been, entitled to citizenship: ibid., at p. 14. (2) Federal Court (Bell J.), 2015 FC 960, [2016] 2 F.C.R. 39\n\nMr. Vavilov sought and was granted leave to bring an application for judicial review of the Registrar’s decision in the Federal Court pursuant to s. 22.1 of the Citizenship Act. His application was dismissed.\n\nThe Federal Court rejected Mr. Vavilov’s argument that the Registrar had breached her duty of procedural fairness by failing to disclose the documentation that had prompted the procedural fairness letter. In the Federal Court’s view, the Registrar had provided Mr. Vavilov sufficient information to allow him to meaningfully respond, and had thereby satisfied the requirements of procedural fairness in the circumstances.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -1994,7 +1994,7 @@ "text": "The Federal Court also rejected Mr. Vavilov’s challenge to the Registrar’s interpretation of s. 3(2) (a) of the Citizenship Act. Applying the correctness standard, the Federal Court agreed with the Registrar that undercover foreign operatives living in Canada fall within the meaning of the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” in s. 3(2)(a). In the Federal Court’s view, to interpret s. 3(2)(a) in any other way would render the phrase “other representative or employee in Canada of a foreign government” meaningless and would lead to the “absurd result” that “children of a foreign diplomat, registered at an embassy, who conducts spy operations, cannot claim Canadian citizenship by birth in Canada but children of those who enter unlawfully for the very same purpose, become Canadian citizens by birth”: para. 25.\n\nFinally, the Federal Court was satisfied, given the evidence, that the Registrar’s conclusion that Mr. Vavilov’s parents had at the time of his birth been in Canada as part of an undercover operation for the Russian government was reasonable. (3) Federal Court of Appeal (Stratas J.A. with Webb J.A. Concurring; Gleason J.A. Dissenting), 2017 FCA 132, [2018] 3 F.C.R. 75\n\nA majority of the Federal Court of Appeal allowed Mr. Vavilov’s appeal from the Federal Court’s judgment and quashed the Registrar’s decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2012,7 +2012,7 @@ "text": "The Court of Appeal unanimously rejected Mr. Vavilov’s argument that he had been denied procedural fairness by the Registrar. In the Court of Appeal’s view, the Registrar had provided Mr. Vavilov sufficient information in the procedural fairness letter to enable him to know the case to meet. Even if Mr. Vavilov had been entitled to more information at the time of that letter, the court indicated that his procedural fairness challenge would nevertheless have failed because he had subsequently obtained that additional information through his own efforts and was able to make meaningful submissions.\n\nThe Court of Appeal was also unanimously of the view that the appropriate standard of review for the Registrar’s interpretation and application of s. 3(2) (a) of the Citizenship Act was reasonableness. It split, however, on the application of that standard to the Registrar’s decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2030,7 +2030,7 @@ "text": "The majority of the Court of Appeal concluded that the analyst’s interpretation of s. 3(2)(a), which the Registrar had adopted, was unreasonable and that the Registrar’s decision should be quashed. The analysis relied on by the Registrar on the statutory interpretation issue was confined to a consideration of the text of s. 3(2)(a) and an abbreviated review of its legislative history, which totally disregarded its purpose or context. In the majority’s view, such a “cursory and incomplete approach to statutory interpretation” in a case such as this was indefensible: para. 44. Moreover, when the provision’s purpose and its context were taken into account, the only reasonable conclusion was that the phrase “employee in Canada of a foreign government” in s. 3(2)(a) was meant to apply only to individuals who have been granted diplomatic privileges and immunities under international law. Because it was common ground that neither of Mr. Vavilov’s parents had been granted such privileges or immunities, s. 3(2)(a) did not apply to him. The cancellation of his citizenship certificate on the basis of s. 3(2)(a) therefore could not stand, and Mr. Vavilov was entitled to Canadian citizenship under the Citizenship Act.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2048,7 +2048,7 @@ "text": "The dissenting judge disagreed, finding that the Registrar’s interpretation of s. 3(2)(a) was reasonable. According to the dissenting judge, the text of that provision admits of at least two rational interpretations: one that includes all employees of a foreign government and one that is restricted to those who have been granted diplomatic privileges and immunities. In the dissenting judge’s view, the former interpretation is not foreclosed by the context or the purpose of the provision. It was thus open to the Registrar to conclude that Mr. Vavilov’s parents fell within the scope of s. 3(2)(a). The dissenting judge would have upheld the Registrar’s decision. C. Analysis (1) Standard of Review\n\nApplying the standard of review analysis set out above leads to the conclusion that the standard to be applied in reviewing the merits of the Registrar’s decision is reasonableness.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2066,7 +2066,7 @@ "text": "When a court reviews the merits of an administrative decision, reasonableness is presumed to be the applicable standard of review, and there is no basis for departing from that presumption in this case. The Registrar’s decision has come before the courts by way of judicial review, not by way of a statutory appeal. On this point, we note that ss. 22.1 through 22.4 of the Citizenship Act lay down rules that govern applications for judicial review of decisions made under that Act, one of which, in s. 22.1(1), is that such an application may be made only with leave of the Federal Court. However, none of these provisions allow for a party to bring an appeal from a decision under the Citizenship Act. Given this fact, and given that Parliament has not prescribed the standard to be applied on judicial review of the decision at issue, there is no indication that the legislature intended a standard of review other than reasonableness to apply. The Registrar’s decision does not give rise to any constitutional questions, general questions of law of central importance to the legal system as a whole or questions regarding the jurisdictional boundaries between two or more administrative bodies. As a result, the standard to be applied in reviewing the decision is reasonableness. (2) Review for Reasonableness\n\nThe principal issue before this Court is whether it was reasonable for the Registrar to find that Mr. Vavilov’s parents had been “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2084,7 +2084,7 @@ "text": "In our view, it was not. The Registrar failed to justify her interpretation of s. 3(2) (a) of the Citizenship Act in light of the constraints imposed by the text of s. 3 of the Citizenship Act considered as a whole, by other legislation and international treaties that inform the purpose of s. 3, by the jurisprudence on the interpretation of s. 3(2)(a), and by the potential consequences of her interpretation. Each of these elements — viewed individually and cumulatively — strongly supports the conclusion that s. 3(2)(a) was not intended to apply to children of foreign government representatives or employees who have not been granted diplomatic privileges and immunities. Though Mr. Vavilov raised many of these considerations in his submissions in response to the procedural fairness letter, the Registrar failed to address those submissions in her reasons and did not, to justify her interpretation of s. 3(2)(a), do more than conduct a cursory review of the legislative history and conclude that her interpretation was not explicitly precluded by the text of s. 3(2)(a).\n\nOur review of the Registrar’s decision leads us to conclude that it was unreasonable for her to find that the phrase “diplomatic or consular officer or other representative or employee in Canada of a foreign government” applies to individuals who have not been granted diplomatic privileges and immunities in Canada. It is undisputed that Mr. Vavilov’s parents had not been granted such privileges and immunities. No purpose would therefore be served by remitting this matter to the Registrar. (a) Section 3(2) of the Citizenship Act", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2102,7 +2102,7 @@ "text": "The analyst justified her conclusion that Mr. Vavilov is not a citizen of Canada by reasoning that his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act. Section 3(2)(a) provides that children of “a diplomatic or consular officer or other representative or employee in Canada of a foreign government” are exempt from the general rule in s. 3(1)(a) that individuals born in Canada after February 14, 1977 acquire Canadian citizenship by birth. The analyst observed that although the term “diplomatic or consular officer” is defined in the Interpretation Act and does not apply to individuals like Mr. Vavilov’s parents, the phrase “other representative or employee in Canada of a foreign government” is not so defined, and may apply to them.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2120,7 +2120,7 @@ "text": "The analyst’s attempt to give the words “other representative or employee in Canada of a foreign government” a meaning distinct from that of “diplomatic or consular officer” is sensible. It is generally consistent with the principle of statutory interpretation that Parliament intends each word in a statute to have meaning: Sullivan, at p. 211. We accept that if the phrase “other representative or employee in Canada of a foreign government” were considered in isolation, it could apply to a spy working in the service of a foreign government in Canada. However, the analyst failed to address the immediate statutory context of s. 3(2)(a), including the closely related text in s. 3(2)(c): (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2138,7 +2138,7 @@ "text": "As the majority of the Court of Appeal noted (at paras. 61-62), the wording of s. 3(2)(c) provides clear support for the conclusion that all of the persons contemplated by s. 3(2)(a) — including those who are “employee[s] in Canada of a foreign government” — must have been granted diplomatic privileges and immunities in some form. If, as the Registrar concluded, s. 3(2)(a) includes persons who do not benefit from these privileges or immunities, it is difficult to understand how effect could be given to the explicit equivalency requirement articulated in s. 3(2)(c). However, the analyst did not account for this tension in the immediate statutory context of s. 3(2)(a). (b) The Foreign Missions and International Organizations Act and the Treaties It Implements\n\nBefore the Registrar, Mr. Vavilov argued that s. 3(2) of the Citizenship Act must be read in conjunction with both the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”), and the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29 (“VCDR”). The VCDR and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, are the two leading treaties that extend diplomatic and/or consular privileges and immunities to employees and representatives of foreign governments in diplomatic missions and consular posts. Parliament has implemented the relevant provisions of both conventions by means of s. 3(1) of the FMIOA .", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2156,7 +2156,7 @@ "text": "To begin, we note that Canada affords citizenship in accordance both with the principle of jus soli, the acquisition of citizenship through birth regardless of the parents’ nationality, and with that of jus sanguinis, the acquisition of citizenship by descent, that is through a parent: Citizenship Act, s. 3(1) (a) and (b); see I. Brownlie, Principles of Public International Law (5th ed. 1998), at pp. 391-93. These two principles operate as a backdrop to s. 3 of the Citizenship Act as a whole. It is undisputed that s. 3(2)(a) operates as an exception to these general rules. However, Mr. Vavilov took a narrower view of that exception than did the Registrar. In his submissions to the Registrar, he argued that Parliament intended s. 3(2) of the Citizenship Act to simply mirror the FMIOA and the VCDR, as well as Article II of the Optional Protocol to the Vienna Convention on Diplomatic Relations, concerning Acquisition of Nationality, 500 U.N.T.S. 223, which provides that “[m]embers of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State”. Mr. Vavilov made the following submission to the Registrar: The purpose in excluding diplomats and their families, including newborn children, from acquiring citizenship in the receiving state relates to the immunities which extend to this group of people. Diplomats and their family members are immune from criminal prosecution and civil liability in the receiving state. As such, they cannot acquire citizenship in the receiving state and also benefit from these immunities. A citizen has duties and responsibilities to its country.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2174,7 +2174,7 @@ "text": "Immunity is inconsistent with this principle and so does not apply to citizens. See Article 37 of the Convention. Section 3(2) legislates into Canadian domestic law the above principles and should be narrowly interpreted with these purposes in mind. The term “employee in Canada of a foreign government” must be interpreted to mean an employee of a diplomatic mission, or connected to it, who benefits from the immunities of the Convention. Any other interpretation would lead to absurd results. There is no purpose served in excluding any child born of a person not having a connection to a diplomatic mission in Canada while sojourning here from the principle of Jus soli. (A.R., vol. IV, at pp. 449-50)", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2192,7 +2192,7 @@ "text": "In Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade), 2007 FC 559, 64 Imm. L.R. (3d) 67, a case which was referred to in the analyst’s report and which we will discuss in greater detail below, the Federal Court, at para. 53, quoted a passage by Professor Brownlie on this point: . . . Of particular interest are the special rules relating to the jus soli, appearing as exceptions to that principle, the effect of the exceptions being to remove the cases where its application is clearly unjustifiable. A rule which has very considerable authority stipulated that children born to persons having diplomatic immunity shall not be nationals by birth of the state to which the diplomatic agent concerned is accredited. Thirteen governments stated the exception in the preliminaries of the Hague Codification Conference. In a comment on the relevant article of the Harvard draft on diplomatic privileges and immunities it is stated: ‘This article is believed to be declaratory of an established rule of international law’. The rule receives ample support from legislation of states and expert opinion.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2210,7 +2210,7 @@ "text": "The Convention on Certain Questions relating to the Conflict of Nationality Laws of 1930 provides in Article 12: ‘Rules of law which confer nationality by reason of birth on the territory of a State shall not apply automatically to children born to persons enjoying diplomatic immunities in the country where the birth occurs.’ In 1961 the United Nations Conference on Diplomatic Intercourse and Immunities adopted an Optional Protocol concerning Acquisition of Nationality, which provided in Article II: ‘Members of the mission not being nationals of the receiving State, and members of their families forming part of their household, shall not, solely by the operation of the law of the receiving State, acquire the nationality of that State’. Some states extend the rule to the children of consuls, and there is some support for this from expert opinion. [Footnotes omitted.] (Brownlie, at pp. 392-93)", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2228,7 +2228,7 @@ "text": "Mr. Vavilov included relevant excerpts from the parliamentary debate that had preceded the enactment of the Citizenship Act in support of his argument that the very purpose of s. 3(2) of the Citizenship Act was to align Canada’s citizenship rules with these principles of international law. These excerpts describe s. 3(2) as “conform[ing] to international custom” and as having been drafted with the intention of “exclud[ing] children born in Canada to diplomats from becoming Canadian citizens”: Hon. J. Hugh Faulkner, Secretary of State of Canada, House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Broadcasting, Films and Assistance to the Arts, Respecting Bill C-20, An Act respecting citizenship, No. 34, 1st Sess., 30th Parl., February 24, 1976, at p. 34:23. The record of that debate also reveals that Parliament took care to avoid the danger that because of how some provisions were written, “a number of other people would be affected such as those working for large foreign corporations”: ibid. Although the analyst discussed the textual difference between s. 3(2) and a similar provision in the former Canadian Citizenship Act, she did not grapple with these other elements of the legislative history, despite the fact that they cast considerable doubt on her conclusions, indicating that s. 3(2) was not intended to affect the status of individuals whose parents have not been granted diplomatic privileges and immunities.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2246,7 +2246,7 @@ "text": "In attempting to distinguish the meaning of the phrase “other representative or employee in Canada of a foreign government” from that of the term “diplomatic or consular officer”, the analyst also appeared to overlook the possibility that some individuals who fall into the former category might be granted privileges or immunities despite not being considered “diplomatic or consular officer[s]” under the Interpretation Act . Yet, as the majority of the Federal Court of Appeal pointed out, such individuals do in fact exist: paras. 53-55, citing FMIOA , at ss. 3 and 4 and Sched. II, Articles 1, 41, 43, 49, and 53. In light of Mr. Vavilov’s submissions regarding the purpose of s. 3(2), the failure to consider this possibility is a noticeable omission.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2264,7 +2264,7 @@ "text": "It is well established that domestic legislation is presumed to comply with Canada’s international obligations, and that it must be interpreted in a manner that reflects the principles of customary and conventional international law: Appulonappa, at para. 40; see also Pushpanathan, at para. 51; Baker, at para. 70; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; Hape, at paras. 53-54; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704, at para. 48; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38; Office of the Children’s Lawyer v. Balev, 2018 SCC 16, [2018] 1 S.C.R. 398, at paras. 31-32. Yet the analyst did not refer to the relevant international law, did not inquire into Parliament’s purpose in enacting s. 3(2) and did not respond to Mr. Vavilov’s submissions on this issue. Nor did she advance any alternate explanation for why Parliament would craft such a provision in the first place. In the face of compelling submissions that the underlying rationale of s. 3(2) was to implement a narrow exception to a general rule in a manner that was consistent with established principles of international law, the analyst and the Registrar chose a different interpretation without offering any reasoned explanation for doing so. (c) Jurisprudence Interpreting Section 3(2) of the Citizenship Act", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2282,7 +2282,7 @@ "text": "Although the analyst cited three Federal Court decisions on s. 3(2) (a) of the Citizenship Act in a footnote, she dismissed them as being irrelevant on the basis that they related only to “individuals whose parents maintained diplomatic status in Canada at the time of their birth”: A.R., vol. I, at p. 7. But this distinction, while true, does not explain why the reasoning employed in those decisions, which directly concerned the scope, the meaning and the legislative purpose of s. 3(2)(a), was inapplicable in Mr. Vavilov’s case. Had the analyst considered just the three cases cited in her report — Al-Ghamdi; Lee v. Canada (Minister of Citizenship and Immigration), 2008 FC 614, [2009] 1 F.C.R. 204; and Hitti v. Canada (Minister of Citizenship and Immigration), 2007 FC 294, 310 F.T.R. 168 — it would have been evident to her that she needed to grapple with and justify her interpretation in light of the persuasive and comprehensive legal reasoning that supports the position that s. 3(2)(a) was intended to apply only to those individuals whose parents have been granted diplomatic privileges and immunities.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2300,7 +2300,7 @@ "text": "In Al-Ghamdi, the Federal Court considered the constitutionality of paras. (a) and (c) of s. 3(2) of the Citizenship Act in reviewing a decision in which Passport Canada had refused to issue a passport to a child of a Saudi Arabian diplomat. In its reasons, the court came to a number of conclusions regarding the purpose and scope of s. 3(2), including, at para. 5, that [t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status. These are individuals who enter Canada under special circumstances and without undergoing any of the normal procedures. Most importantly, while in Canada, they are granted all of the immunities and privileges of diplomats . . . .", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2318,7 +2318,7 @@ "text": "The court went on to extensively document the link between the exception to the rule of citizenship by birth set out in s. 3(2) of the Citizenship Act and the rules of international law, the FMIOA and the VCDR: Al-Ghamdi, at paras. 52 et seq. It noted that there is an established rule of international law that children born to parents who enjoy diplomatic immunities are not entitled to automatic citizenship by birth, and that their status in this respect is an exception to the principle of jus soli: Al-Ghamdi, at para. 53, quoting Brownlie, at pp. 391-93. In finding that the exceptions under s. 3(2) to citizenship on the basis of jus soli do not infringe the rights of children of diplomats under s. 15 of the Charter , the court emphasized that all children to whom s. 3(2) applies are entitled to an “extraordinary array of privileges under the Foreign Missions and International Organizations Act ”: Al-Ghamdi, at para. 62. Citing the VCDR, it added that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship”: para. 63. In its analysis under s. 1 of the Charter , the court found that the choice to deny citizenship to individuals provided for in s. 3(2) is “tightly connected” to a pressing government objective of ensuring “that no citizen is immune from the obligations of citizenship”, such as the obligations to pay taxes and comply with the criminal law: Al-Ghamdi, at paras. 74-75. In the case at bar, the analyst failed entirely to engage with the arguments endorsed by the Federal Court in Al-Ghamdi despite the court’s key finding that s.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2336,7 +2336,7 @@ "text": "3(2)(a) applies only to “children born of foreign diplomats or an equivalent”, a conclusion upon which the very constitutionality of the provision turned: Al-Ghamdi, at paras. 3, 9, 27, 28, 56 and 59.\n\nIn Lee, another case cited by the analyst, the Federal Court confirmed the finding in Al-Ghamdi that “[t]he only individuals covered in paragraphs 3(2) (a) and (c) of the Citizenship Act are children of individuals with diplomatic status”: Lee, at para. 77. The court found in Lee that the “functional duties of the applicant’s father” were not relevant to whether or not the applicant was excluded from citizenship pursuant to s. 3(2) (a) of the Citizenship Act: para. 58. Rather, what mattered was only that at the time of the applicant’s birth, his father had been a registered consular official and had held a diplomatic passport and the title of Vice-Consul: paras. 44, 58, 61 and 63.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2354,7 +2354,7 @@ "text": "Hitti, the third case cited in the analyst’s report, concerned a decision to confiscate two citizenship certificates on the basis that, under s. 3(2) of the Citizenship Act, their holders had never been entitled to them. In that case, the applicants’ father, a Lebanese citizen, had been employed as an information officer of the League of Arab States in Ottawa. Although the League did not have diplomatic standing at that time, Canada had agreed as a matter of courtesy to extend diplomatic status to officials of the League’s information centre, treating them as “attachés” of their home countries’ embassies: Hitti, at paras. 6 and 9; see also Interpretation Act , s. 35(1) . Mr. Hitti argued he did not, in practice, fulfill diplomatic tasks or act as a representative of Lebanon, but there was nonetheless a record of his being an accredited diplomat, enjoying the benefits of that status and being covered by the VCDR when his children were born: paras. 5 and 8. The Federal Court rejected a submission that Mr. Hitti would have had to perform duties in the service of Lebanon in order for his children to fall within the meaning of s. 3(2)(a), and concluded that “what Mr. Hitti did when he was in the country is not relevant”: para. 32.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2372,7 +2372,7 @@ "text": "What can be seen from both Lee and Hitti is that what matters, for the purposes of s. 3(2)(a), is not whether an individual carries out activities in the service of a foreign state while in Canada, but whether, at the relevant time, the individual has been granted diplomatic privileges and immunities. Thus, in addition to the Federal Court’s decision in Al-Ghamdi, the analyst was faced with two cases in which the application of s. 3(2) had turned on the existence of diplomatic status rather than on the “functional duties” or activities of the child’s parents. In these circumstances, it was a significant omission for her to ignore the Federal Court’s reasoning when determining whether the espionage activities of Ms. Vavilova and Mr. Bezrukov were sufficient to ground the application of s. 3(2)(a). (d) Possible Consequences of the Registrar’s Interpretation\n\nWhen asked why the children of individuals referred to in s. 3(2)(a) would be excluded from acquiring citizenship by birth, another analyst involved in Mr. Vavilov’s file (who had also been involved in Mr. Vavilov’s brother’s file) responded as follows: Well, usually the way we use section 3(2)(a) is for — you’re right, for diplomats and that they don’t — because they are not — they are not obliged . . . to the law of Canada and everything, so that’s why their children do not obtain citizenship if they were born in Canada while the person was in Canada under that status. But then there is also this other part of the Act that says other representatives or employees of a foreign government in Canada, that may open the door for other person[s] than diplomats and that’s how we interpreted in this specific case 3(2)(a) but there is no jurisprudence on that . . . . (R.R., transcript, at pp. 87-88)", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2390,7 +2390,7 @@ "text": "In other words, the officials responsible for these files were aware that s. 3(2)(a) was informed by the principle that individuals subject to the exception are “not obliged . . . to the law of Canada”. They were also aware that the interpretation they had adopted in the case of the Vavilov brothers was a novel one. Although the Registrar knew this, she failed to provide a rationale for this expanded interpretation.\n\nAdditionally, there is no evidence that the Registrar considered the potential consequences of expanding her interpretation of s. 3(2)(a) to include individuals who have not been granted diplomatic privileges and immunities. Citizenship has been described as “the right to have rights”: U.S. Supreme Court Chief Justice Earl Warren, as quoted in A. Brouwer, Statelessness in Canadian Context: A Discussion Paper (July 2003) (online), at p. 2. The importance of citizenship was recognized in Benner v. Canada (Secretary of State), [1997] 1 S.C.R. 358, in which Iacobucci J., writing for this Court, stated: “I cannot imagine an interest more fundamental to full membership in Canadian society than Canadian citizenship”: para. 68. This was reiterated in Canada (Minister of Citizenship and Immigration) v. Tobiass, [1997] 3 S.C.R. 391, in which this Court unanimously held that “[f]or some, such as those who might become stateless if deprived of their citizenship, it may be valued as highly as liberty”: para. 108.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2408,7 +2408,7 @@ "text": "It perhaps goes without saying that rules concerning citizenship require a high degree of interpretive consistency in order to shield against a perception of arbitrariness and to ensure conformity with Canada’s international obligations. We can therefore only assume that the Registrar intended that this new interpretation of s. 3(2)(a) would apply to any other individual whose parent is employed by or represents a foreign government at the time of the individual’s birth in Canada but has not been granted diplomatic privileges and immunities. The Registrar’s interpretation would not, after all, limit the application of s. 3(2)(a) to the children of spies — its logic would be equally applicable to a number of other scenarios, including that of a child of a non-citizen worker employed by an embassy as a gardener or cook, or of a child of a business traveller who represents a foreign government-owned corporation. Mr. Vavilov had raised the fact that provisions such as s. 3(2)(a) must be given a narrow interpretation because they deny or potentially take away rights — that of citizenship under s. 3(1) in this case — which otherwise benefit from a liberal and broad interpretation: Brossard (Town) v. Quebec (Commission des droits de la personne), [1988] 2 S.C.R. 279, at p. 307. Yet there is no indication that the Registrar considered the potential harsh consequences of her interpretation for such a large class of individuals, which included Mr. Vavilov, or the question whether, in light of those possible consequences, Parliament would have intended s. 3(2)(a) to apply in this manner.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2426,7 +2426,7 @@ "text": "Moreover, we would note that despite following a different legal process, the Registrar’s decision in this case had the same effect as a revocation of citizenship — a process which has been described by scholars as “a kind of ‘political death’” — depriving Mr. Vavilov of his right to vote and the right to enter and remain in Canada: see A. Macklin, “Citizenship Revocation, the Privilege to Have Rights and the Production of the Alien” (2014), 40 Queen’s L.J. 1, at pp. 7-8. While we question whether the Registrar was empowered to unilaterally alter Canada’s position with respect to Mr. Vavilov’s citizenship and recognize that the relationship between the cancellation of a citizenship certificate under s. 26 of the Citizenship Regulations and the revocation of an individual’s citizenship (as set out in s. 10 of the Citizenship Act) is not clear, we leave this issue for another day because it was neither raised nor argued by the parties. D. Conclusion", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2444,7 +2444,7 @@ "text": "Multiple legal and factual constraints may bear on a given administrative decision, and these constraints may interact with one another. In some cases, a failure to justify the decision against any one relevant constraint may be sufficient to cause the reviewing court to lose confidence in the reasonableness of the decision. Section 3 of the Citizenship Act considered as a whole, other legislation and international treaties that inform the purpose of s. 3, the jurisprudence cited in the analyst’s report, and the potential consequences of the Registrar’s decision point overwhelmingly to the conclusion that Parliament did not intend s. 3(2)(a) to apply to children of individuals who have not been granted diplomatic privileges and immunities. The Registrar’s failure to justify her decision with respect to these constraints renders her interpretation unreasonable, and we would therefore uphold the Federal Court of Appeal’s decision to quash the Registrar’s decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2462,7 +2462,7 @@ "text": "As noted above, we would exercise our discretion not to remit the matter to the Registrar for redetermination. Crucial to our decision is the fact that Mr. Vavilov explicitly raised all of these issues before the Registrar and that the Registrar had an opportunity to consider them but failed to do so. She offered no justification for the interpretation she adopted except for a superficial reading of the provision in question and a comment on part of its legislative history. On the other hand, there is overwhelming support — including in the parliamentary debate, established principles of international law, an established line of jurisprudence and the text of the provision itself — for the conclusion that Parliament did not intend s. 3(2) (a) of the Citizenship Act to apply to children of individuals who have not been granted diplomatic privileges and immunities. That being said, we would stress that it is not our intention to offer a definitive interpretation of s. 3(2)(a) in all respects, nor to foreclose the possibility that multiple reasonable interpretations of other aspects might be available to administrative decision makers. In short, we do not suggest that there is necessarily “one reasonable interpretation” of the provision as a whole. But we agree with the majority of the Court of Appeal that it was not reasonable for the Registrar to interpret s. 3(2)(a) as applying to children of individuals who have not been granted diplomatic privileges and immunities at the time of the children’s birth.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2480,7 +2480,7 @@ "text": "Given that it is undisputed that Ms. Vavilova and Mr. Bezrukov, as undercover spies, were granted no such privileges, it would serve no purpose to remit the matter in this case to the Registrar. Given that Mr. Vavilov is a person who was born in Canada after February 14, 1977, his status is governed only by the general rule set out in s. 3(1) (a) of the Citizenship Act. He is a Canadian citizen. E. Disposition\n\nThe appeal is dismissed with costs throughout to Mr. Vavilov. The following are the reasons delivered by\n\nAbella and Karakatsanis JJ. — Forty years ago, in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, this Court embarked on a course to recognize the unique and valuable role of administrative decision-makers within the Canadian legal order. Breaking away from the court-centric theories of years past, the Court encouraged judges to show deference when specialized administrative decision-makers provided reasonable answers to legal questions within their mandates. Building on this more mature understanding of administrative law, subsequent decisions of this Court sought to operationalize deference and explain its relationship to core democratic principles. These appeals offered a platform to clarify and refine our administrative law jurisprudence, while remaining faithful to the deferential path it has travelled for four decades.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2498,7 +2498,7 @@ "text": "Regrettably, the majority shows our precedents no such fidelity. Presented with an opportunity to steady the ship, the majority instead dramatically reverses course — away from this generation’s deferential approach and back towards a prior generation’s more intrusive one. Rather than confirming a meaningful presumption of deference for administrative decision-makers, as our common law has increasingly done for decades, the majority’s reasons strip away deference from hundreds of administrative actors subject to statutory rights of appeal; rather than following the consistent path of this Court’s jurisprudence in understanding legislative intent as being the intention to leave legal questions within their mandate to specialized decision-makers with expertise, the majority removes expertise from the equation entirely and reformulates legislative intent as an overriding intention to provide — or not provide — appeal routes; and rather than clarifying the role of reasons and how to review them, the majority revives the kind of search for errors that dominated the pre-C.U.P.E. era. In other words, instead of reforming this generation’s evolutionary approach to administrative law, the majority reverses it, taking it back to the formalistic judge-centred approach this Court has spent decades dismantling.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2516,7 +2516,7 @@ "text": "We support the majority’s decision to eliminate the vexing contextual factors analysis from the standard of review framework and to abolish the shibboleth category of “true questions of jurisdiction”. These improvements, accompanied by a meaningful presumption of deference for administrative decision-makers, would have simplified our judicial review framework and addressed many of the criticisms levied against our jurisprudence since Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190.\n\nBut the majority goes much further and fundamentally reorients the decades-old relationship between administrative actors and the judiciary, by dramatically expanding the circumstances in which generalist judges will be entitled to substitute their own views for those of specialized decision-makers who apply their mandates on a daily basis. In so doing, the majority advocates a profoundly different philosophy of administrative law than the one which has guided our Court’s jurisprudence for the last four decades. The majority’s reasons are an encomium for correctness and a eulogy for deference. The Evolution of Canadian Administrative Law", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2534,7 +2534,7 @@ "text": "The modern Canadian state “could not function without the many and varied administrative tribunals that people the legal landscape” (The Rt. Hon. Beverley McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship, May 27, 2013 (online)). Parliament and the provincial legislatures have entrusted a broad array of complex social and economic challenges to administrative actors, including regulation of labour relations, welfare programs, food and drug safety, agriculture, property assessments, liquor service and production, infrastructure, the financial markets, foreign investment, professional discipline, insurance, broadcasting, transportation and environmental protection, among many others. Without these administrative decision-makers, “government would be paralyzed, and so would the courts” (Guy Régimbald, Canadian Administrative Law (2nd ed. 2015), at p. 3).\n\nIn exercising their mandates, administrative decision-makers often resolve claims and disputes within their areas of specialization (Gus Van Harten et al., Administrative Law: Cases, Text, and Materials (7th ed. 2015), at p. 13). These claims and disputes vary greatly in scope and subject-matter. Corporate merger requests, professional discipline complaints by dissatisfied clients, requests for property reassessments and applications for welfare benefits, among many other matters, all fall within the purview of the administrative justice system.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2552,7 +2552,7 @@ "text": "The administrative decision-makers tasked to resolve these issues come from many different walks of life (Van Harten et al., at p. 15). Some have legal backgrounds, some do not. The diverse pool of decision-makers in the administrative system responds to the diversity of issues that it must resolve. To address this broad range of issues, administrative dispute-resolution processes are generally “[d]esigned to be less cumbersome, less expensive, less formal and less delayed” than their judicial counterparts — but “no less effectiv[e] or credibl[e]” (Rasanen v. Rosemount Instruments Ltd. (1994), 17 O.R. (3d) 267 (C.A.), at p. 279). In the field of labour relations, for example, Parliament explicitly rejected a court-based system to resolve workplace disputes in favour of a Labour Board, staffed with representatives from management and labour alongside an independent member (Bora Laskin, “Collective Bargaining in Ontario: A New Legislative Approach” (1943), 21 Can. Bar Rev. 684; John A. Willes, The Ontario Labour Court: 1943-1944 (1979); Katherine Munro, “A ‘Unique Experiment’: The Ontario Labour Court, 1943-1944” (2014), 74 Labour 199). Other administrative processes — license renewals, zoning permit issuances and tax reassessments, for example — bear even less resemblance to the traditional judicial model.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2570,7 +2570,7 @@ "text": "Courts, through judicial review, monitor the boundaries of administrative decision making. Questions about the standards of judicial review have been an enduring feature of Canadian administrative law. The debate, in recent times, has revolved around “reasonableness” and “correctness”, and determining when each standard applies. On the one hand, “reasonableness” review expects courts to defer to decisions by specialized decision-makers that “are defensible in respect of the facts and law”; on the other, “correctness” review allows courts to substitute their own opinions for those of the initial decision-maker (Dunsmuir, at paras. 47-50). This standard of review debate has profound implications for the extent to which reviewing courts may substitute their views for those of administrative decision-makers. At its core, it is a debate over two distinct philosophies of administrative law.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2588,7 +2588,7 @@ "text": "The story of modern Canadian administrative law is the story of a shift away from the court-centric philosophy which denied administrative bodies the authority to interpret or shape the law. This approach found forceful expression in the work of Albert Venn Dicey. For Dicey, the rule of law meant the rule of courts. Dicey developed his philosophy at the end of the 19th century to encourage the House of Lords to restrain the government from implementing ameliorative social and welfare reforms administered by new regulatory agencies. Famously, Dicey asserted that administrative law was anathema to the English legal system (Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at pp. 334-35). Because, in his view, only the judiciary had the authority to interpret law, there was no reason for a court to defer to legal interpretations proffered by administrative bodies, since their decisions did not constitute “law” (Kevin M. Stack, “Overcoming Dicey in Administrative Law” (2018), 68 U.T.L.J. 293, at p. 294).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2606,7 +2606,7 @@ "text": "The canonical example of Dicey’s approach at work is the House of Lords’ decision in Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147, the judicial progenitor of “jurisdictional error”. Anisminic entrenched non-deferential judicial review by endorsing a lengthy checklist of “jurisdictional errors” capable of undermining administrative decisions. Lord Reid noted that there were two scenarios in which an administrative decision-maker would lose jurisdiction. The first was narrow and asked whether the legislature had empowered the administrative decision-maker to “enter on the inquiry in question” (p. 171). The second was wider: [T]here are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity. It may have given its decision in bad faith. It may have made a decision which it had no power to make. It may have failed in the course of the inquiry to comply with the requirements of natural justice. It may in perfect good faith have misconstrued the provisions giving it power to act so that it failed to deal with the question remitted to it and decided some question which was not remitted to it. It may have refused to take into account something which it was required to take into account. Or it may have based its decision on some matter which, under the provisions setting it up, it had no right to take into account. I do not intend this list to be exhaustive. [Emphasis added; p. 171.]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2624,7 +2624,7 @@ "text": "The broad “jurisdictional error” approach in Anisminic initially found favour with this Court in cases like Metropolitan Life Insurance Co. v. International Union of Operating Engineers, Local 796, [1970] S.C.R. 425, and Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756. These cases “took the position that a definition of jurisdictional error should include any question pertaining to the interpretation of a statute made by an administrative tribunal”, and in each case, “th[e] Court substituted what was, in its opinion, the correct interpretation of the enabling provision of the tribunal’s statute for that of the tribunal” (Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at p. 650, per Cory J., dissenting, but not on this point). In Metropolitan Life, for example, this Court quashed a labour board’s decision to certify a union, concluding that the Board had “ask[ed] itself the wrong question” and “decided a question which was not remitted to it” (p. 435). In Bell, this Court held that a human rights commission had strayed beyond its jurisdiction by deciding to investigate a complaint of racial discrimination filed against a landlord. The Court held that the Commission had incorrectly interpreted the term “self-contained dwelling uni[t]” found in s. 3 of the Ontario Human Rights Code, 1961-62, S.O. 1961-62, c. 93, and by so doing, had lost jurisdiction to inquire into the complaint of discrimination (pp. 767 and 775).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2642,7 +2642,7 @@ "text": "As these cases illustrate, the Anisminic approach proved easy to manipulate, allowing courts to characterize any question as “jurisdictional” and thereby give themselves latitude to substitute their own view of the appropriate answer without regard for the original decision-maker’s decision or reasoning. The Anisminic era and the “jurisdictional error” approach were and continue to be subject to significant judicial and academic criticism (Public Service Alliance, at p. 650; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1335, per Wilson J., concurring; Beverley McLachlin, P.C., “‘Administrative Law is Not for Sissies’: Finding a Path Through the Thicket” (2016), 29 C.J.A.L.P. 127, at pp. 129-30; Jocelyn Stacey and Alice Woolley, “Can Pragmatism Function in Administrative Law?” (2016), 74 S.C.L.R. (2d) 211, at pp. 215-16; R. A. Macdonald, “Absence of Jurisdiction: A Perspective” (1983), 43 R. du B. 307).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2660,7 +2660,7 @@ "text": "In 1979, the Court signaled a turn to a more deferential approach to judicial review with its watershed decision in C.U.P.E. There, the Court challenged the “jurisdictional error” model and planted the seeds of a home-grown approach to administrative law in Canada. In a frequently-cited passage, Dickson J., writing for a unanimous Court, cautioned that courts “should not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233; cited in nearly 20 decisions of this Court, including Dunsmuir, at para. 35; Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339, at para. 45; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, [2011] 3 S.C.R. 654, at para. 33; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2018] 2 S.C.R. 230, at para. 31). The Court instead endorsed an approach that respected the legislature’s decision to assign legal policy issues in some areas to specialized, non-judicial decision-makers. The Court recognized that legislative language could “bristl[e] with ambiguities” and that the interpretive choices made by administrative tribunals deserved respect from courts, particularly when, as in C.U.P.E., the decision was protected by a privative clause (pp. 230 and 234-36).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2678,7 +2678,7 @@ "text": "By championing “curial deference” to administrative bodies, C.U.P.E. embraced “a more sophisticated understanding of the role of administrative tribunals in the modern Canadian state” (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, at p. 800). As one scholar has observed: . . . legislatures and courts in . . . Canada have come to settle on the idea that the functional capacities of administrative agencies – their expertise, investment in understanding the practical circumstances at issue, openness to participation, and level of responsiveness to political change – justify not only their law-making powers but also judicial deference to their interpretations and decisions. Law-making and legal interpretation are shared enterprises in the administrative state. [Emphasis added.] (Stack, at p. 310)\n\nIn explaining why courts must sometimes defer to administrative actors, C.U.P.E. embraced two related foundational justifications for Canada’s approach to administrative law — one based on the legislature’s express choice to have an administrative body decide the issues arising from its mandate; and one animated by the recognition that an administrative justice system could offer institutional advantages in relation to proximity, efficiency, and specialized expertise (David Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy” in Michael Taggart, ed., The Province of Administrative Law (1997), 279 at p. 304).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2696,7 +2696,7 @@ "text": "A new institutional relationship between the courts and administrative actors was thus being forged, based on “an understanding of the role of expertise in the modern administrative state” which “acknowledge[d] that judges are not always in the best position to interpret the law” (The Hon. Frank Iacobucci, “Articulating a Rational Standard of Review Doctrine: A Tribute to John Willis” (2002), 27 Queen’s L.J. 859, at p. 866).\n\nIn subsequent decades, the Court attempted to reconcile the deference urged by C.U.P.E. with the lingering concept of “jurisdictional error”. In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, the Court introduced the “pragmatic and functional” approach for deciding when a matter was within the jurisdiction of an administrative body. Instead of describing jurisdiction as a preliminary or collateral matter, the Bibeault test directed reviewing courts to consider the wording of the enactment conferring jurisdiction on the administrative body, the purpose of the statute creating the tribunal, the reason for the tribunal’s existence, the area of expertise of its members, and the nature of the question the tribunal had to decide — all to determine whether the legislator “intend[ed] the question to be within the jurisdiction conferred on the tribunal” (p. 1087; see also p. 1088). If so, the tribunal’s decision could only be set aside if it was “patently unreasonable” (p. 1086).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2714,7 +2714,7 @@ "text": "Although still rooted in a formalistic search for jurisdictional errors, the pragmatic and functional approach recognized that legislatures had assigned courts and administrative decision-makers distinct roles, and that the specialization and expertise of administrative decision-makers deserved deference. In her concurring reasons in National Corn Growers, Wilson J. noted that part of the process of moving away from Dicey’s framework and towards a more sophisticated understanding of the role of administrative tribunals: . . . has involved a growing recognition on the part of courts that they may simply not be as well equipped as administrative tribunals or agencies to deal with issues which Parliament has chosen to regulate through bodies exercising delegated power, e.g., labour relations, telecommunications, financial markets and international economic relations. Careful management of these sectors often requires the use of experts who have accumulated years of experience and a specialized understanding of the activities they supervise. [p. 1336]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2732,7 +2732,7 @@ "text": "By the mid-1990s, the Court had accepted that specialization and the legislative intent to leave issues to administrative decision-makers were inextricable and essential factors in the standard of review analysis. It stressed that “the expertise of the tribunal is of the utmost importance in determining the intention of the legislator with respect to the degree of deference to be shown to a tribunal’s decision . . . [e]ven where the tribunal’s enabling statute provides explicitly for appellate review” (United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, at p. 335). Of the factors relevant to setting the standard of review, expertise was held to be “the most important” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 50).\n\nConsistent with these judgments, this Court invoked the specialized expertise of a securities commission to explain why its decisions were entitled to deference on judicial review even when there was a statutory right of appeal. Writing for a unanimous Court, Iacobucci J. explained that “the concept of the specialization of duties requires that deference be shown to decisions of specialized tribunals on matters which fall squarely within the tribunal’s expertise” (Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 591; see also Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, at pp. 1745-46). Critically, the Court’s willingness to show deference demonstrated that specialization outweighed a statutory appeal as the most significant indicator of legislative intent.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2750,7 +2750,7 @@ "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, the Court reformulated the pragmatic and functional approach, engaging four slightly different factors from those in Bibeault, namely: (1) whether there was a privative clause, or conversely, a right of appeal; (2) the expertise of the decision-maker on the matter in question relative to the reviewing court; (3) the purpose of the statute as a whole, and of the provision in particular; and (4) the nature of the problem, i.e., whether it was a question of law, fact, or mixed law and fact (paras. 29‑37). Instead of using these factors to answer whether a question was jurisdictional, Pushpanathan deployed them to discern how much deference the legislature intended an administrative decision to receive on judicial review. Pushpanathan confirmed three standards of review: patent unreasonableness, reasonableness simpliciter, and correctness (para. 27; see also Southam, at paras. 55‑56).\n\nSignificantly, Pushpanathan did not disturb the finding reaffirmed in Southam that specialized expertise was the most important factor in determining whether a deferential standard applied. Specialized expertise thus remained integral to the calibration of legislative intent, even in the face of statutory rights of appeal (see Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paras. 21 and 29-34; Cartaway Resources Corp. (Re), [2004] 1 S.C.R. 672, at para. 45; Council of Canadians with Disabilities v. VIA Rail Canada Inc., [2007] 1 S.C.R. 650, at paras. 88‑92 and 100).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2768,7 +2768,7 @@ "text": "Next came Dunsmuir, which sought to simplify the pragmatic and functional analysis while maintaining respect for the specialized expertise of administrative decision-makers. The Court merged the three standards of review into two: reasonableness and correctness. Dunsmuir also wove together the deferential threads running through the Court’s administrative law jurisprudence, setting out a presumption of deferential review for certain categories of questions, including those where the decision-maker had expertise or was interpreting its “home” statute (paras. 53-54, per Bastarache and LeBel JJ., and para. 124, per Binnie J., concurring). Certain categories of issues remained subject to correctness review, including constitutional questions regarding the division of powers, true questions of jurisdiction, questions of law that were both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, and questions about jurisdictional lines between tribunals (paras. 58-61). Where the standard of review had not been satisfactorily determined in the jurisprudence, four contextual factors — the presence or absence of a privative clause, the purpose of the tribunal, the nature of the question at issue and the expertise of the tribunal — remained relevant to the standard of review analysis (para. 64).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2786,7 +2786,7 @@ "text": "Notably, Dunsmuir did not mention statutory rights of appeal as one of the contextual factors, and left undisturbed their marginal role in the standard of review analysis. Instead, the Court explicitly affirmed the links between deference, the specialized expertise of administrative decision-makers and legislative intent. Justices LeBel and Bastarache held that “deference requires respect for the legislative choices to leave some matters in the hands of administrative decision makers, for the processes and determinations that draw on particular expertise and experiences, and for the different roles of the courts and administrative bodies within the Canadian constitutional system” (para. 49). They noted that “in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (para. 49, citing David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2804,7 +2804,7 @@ "text": "Post-Dunsmuir, this Court continued to stress that specialized expertise is the basis for making administrative decision-makers, rather than the courts, the appropriate forum to decide issues falling within their mandates (see Khosa, at para. 25; R. v. Conway, [2010] 1 S.C.R. 765, at para. 53; McLean v. British Columbia (Securities Commission), [2013] 3 S.C.R. 895, at paras. 30-33). Drawing on the concept of specialized expertise, the Court’s post-Dunsmuir cases expressly confirmed a presumption of reasonableness review for an administrative decision-maker’s interpretation of its home or closely-related statutes (see Alberta Teachers’ Association, at paras. 39-41). As Gascon J. explained in Mouvement laïque québécois v. Saguenay (City), [2015] 2 S.C.R. 3, at para. 46: Deference is in order where the Tribunal acts within its specialized area of expertise . . . (Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, [2013] 1 S.C.R. 467, at paras. 166-68; Mowat, at para. 24). In Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at paras. 30, 34 and 39, the Court noted that, on judicial review of a decision of a specialized administrative tribunal interpreting and applying its enabling statute, it should be presumed that the standard of review is reasonableness (Canadian National Railway Co. v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135, at para. 55; Canadian Artists’ Representation v. National Gallery of Canada, 2014 SCC 42, [2014] 2 S.C.R. 197 (“NGC”), at para. 13; Khosa, at para. 25; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, at paras. 26 and 28; Dunsmuir, at para. 54).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2822,7 +2822,7 @@ "text": "And in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., [2016] 2 S.C.R. 293, the majority recognized: The presumption of reasonableness is grounded in the legislature’s choice to give a specialized tribunal responsibility for administering the statutory provisions, and the expertise of the tribunal in so doing. Expertise arises from the specialization of functions of administrative tribunals like the Board which have a habitual familiarity with the legislative scheme they administer . . . . [E]xpertise is something that inheres in a tribunal itself as an institution: “. . . at an institutional level, adjudicators . . . can be presumed to hold relative expertise in the interpretation of the legislation that gives them their mandate, as well as related legislation that they might often encounter in the course of their functions.” [Citation omitted; para. 33.]\n\nThe presumption of deference, therefore, operationalized the Court’s longstanding jurisprudential acceptance of the “specialized expertise” principle in a workable manner, continuing the deferential path Dickson J. first laid out in C.U.P.E.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2840,7 +2840,7 @@ "text": "As for statutory rights of appeal, they continued to be seen as either an irrelevant factor in the standard of review analysis or one that yielded to specialized expertise. So firmly entrenched was this principle that in cases like Bell Canada v. Bell Aliant Regional Communications, [2009] 2 S.C.R. 764, Smith v. Alliance Pipeline Ltd., [2011] 1 S.C.R. 160, ATCO Gas and Pipelines Ltd. v. Alberta (Utilities Commission), [2015] 3 S.C.R. 219, and Canada (Attorney General) v. Igloo Vikski Inc., [2016] 2 S.C.R. 80, the Court applied the reasonableness standard without even referring to the presence of an appeal clause. When appeal clauses were discussed, the Court consistently confirmed that they did not oust the application of judicial review principles.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2858,7 +2858,7 @@ "text": "In Khosa, Binnie J. explicitly endorsed Pezim and rejected “the idea that in the absence of express statutory language . . . a reviewing court is ‘to apply a correctness standard as it does in the regular appellate context’” (para. 26). This reasoning was followed in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), [2011] 3 S.C.R. 471 (“Mowat”), where the Court confirmed that “care should be taken not to conflate” judicial and appellate review (para. 30; see also para. 31). In McLean, decided two years after Mowat, the majority cited Pezim and other cases for the proposition that “general administrative law principles still apply” on a statutory appeal (see para. 21, fn. 2). Similarly, in Mouvement laïque, Gascon J. affirmed that [w]here a court reviews a decision of a specialized administrative tribunal, the standard of review must be determined on the basis of administrative law principles. This is true regardless of whether the review is conducted in the context of an application for judicial review or of a statutory appeal . . . . [para. 38]\n\nIn Edmonton East, the Court considered — and again rejected — the argument that statutory appeals should form a new category of correctness review. As the majority noted, “recognizing issues arising on statutory appeals as a new category to which the correctness standard applies — as the Court of Appeal did in this case — would go against strong jurisprudence from this Court” (para. 28). Even the dissenting judges in Edmonton East, although of the view that the wording of the relevant statutory appeal clause and legislative scheme pointed to the correctness standard, nonetheless unequivocally stated that “a statutory right of appeal is not a new ‘category’ of correctness review” (para. 70).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2876,7 +2876,7 @@ "text": "By the time these appeals were heard, contextual factors had practically disappeared from the standard of review analysis, replaced by a presumption of deference subject only to the correctness exceptions set out in Dunsmuir — which explicitly did not include statutory rights of appeal. In other words, the Court was well on its way to realizing Dunsmuir’s promise of a simplified analysis. Justice Gascon recognized as much last year in Canadian Human Rights Commission: This contextual approach should be applied sparingly. As held by the majority of this Court in Alberta Teachers, it is inappropriate to “retreat to the application of a full standard of review analysis where it can be determined summarily” . . . . After all, the “contextual approach can generate uncertainty and endless litigation concerning the standard of review” (Capilano [Edmonton East], at para. 35). The presumption of reasonableness review and the identified categories will generally be sufficient to determine the applicable standard. In the exceptional cases where such a contextual analysis may be justified to rebut the presumption, it need not be a long and detailed one (Capilano [Edmonton East], at para. 34). Where it has been done or referred to in the past, the analysis has been limited to determinative factors that showed a clear legislative intent justifying the rebuttal of the presumption (see, e.g., Rogers, at para. 15; Tervita, at paras. 35-36; see also, Saguenay, at paras. 50-51). [Emphasis added; para. 46.]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2894,7 +2894,7 @@ "text": "In sum, for four decades, our standard of review jurisprudence has been clear and unwavering about the foundational role of specialized expertise and the limited role of statutory rights of appeal. Where confusion persists, it concerns the relevance of the contextual factors in Dunsmuir, the meaning of “true questions of jurisdiction” and how best to conduct reasonableness review. That was the backdrop against which these appeals were heard and argued. But rather than ushering in a simplified next act, these appeals have been used to rewrite the whole script, reassigning to the courts the starring role Dicey ordained a century ago. The Majority’s Reasons\n\nThe majority’s framework rests on a flawed and incomplete conceptual account of judicial review, one that unjustifiably ignores the specialized expertise of administrative decision-makers. Although the majority uses language endorsing a “presumption of reasonableness review”, this presumption now rests on a totally new understanding of legislative intent and the rule of law. By prohibiting any consideration of well-established foundations for deference, such as “expertise . . . institutional experience . . . proximity and responsiveness to stakeholders . . . prompt[ness], flexib[ility], and efficien[cy]; and . . . access to justice”, the majority reads out the foundations of the modern understanding of legislative intent in administrative law.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2912,7 +2912,7 @@ "text": "In particular, such an approach ignores the possibility that specialization and other advantages are embedded into the legislative choice to delegate particular subject matters to administrative decision-makers. Giving proper effect to the legislature’s choice to “delegate authority” to an administrative decision-maker requires understanding the advantages that the decision-maker may enjoy in exercising its mandate (Dunsmuir, at para. 49). As Iacobucci J. observed in Southam: Presumably if Parliament entrusts a certain matter to a tribunal and not (initially at least) to the courts, it is because the tribunal enjoys some advantage that judges do not. For that reason alone, review of the decision of a tribunal should often be on a standard more deferential than correctness. [Emphasis added; para. 55.]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2930,7 +2930,7 @@ "text": "Chief among those advantages are the institutional expertise and specialization inherent to administering a particular mandate on a daily basis. Those appointed to administrative tribunals are often chosen precisely because their backgrounds and experience align with their mandate (Van Harten et al., at p. 15; Régimbald, at p. 463). Some administrative schemes explicitly require a degree of expertise from new members as a condition of appointment (Edmonton East, at para. 33; Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 29; Régimbald, at p. 462). As institutions, administrative bodies also benefit from specialization as they develop “habitual familiarity with the legislative scheme they administer” (Edmonton East, at para. 33) and “grappl[e] with issues on a repeated basis” (Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324, [2003] 2 S.C.R. 157, at para. 53). Specialization and expertise are further enhanced by continuing education and through meetings of the membership of an administrative body to discuss policies and best practices (Finn Makela, “Acquired Expertise of Administrative Tribunals and the Standard of Judicial Review: The Case of Grievance Arbitrators and Human Rights Law” (2013), 17 C.L.E.L.J. 345, at p. 349). In addition, the blended membership of some tribunals fosters special institutional competence in resolving “polycentric” disputes (Pushpanathan, at para. 36; Dr. Q, at paras. 29-30; Pezim, at pp. 591-92 and 596).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2948,7 +2948,7 @@ "text": "All this equips administrative decision-makers to tackle questions of law arising from their mandates. In interpreting their enabling statutes, for example, administrative actors may have a particularly astute appreciation for the on-the-ground consequences of particular legal interpretations; of statutory context; of the purposes that a provision or legislative scheme are meant to serve; and of specialized terminology used in their administrative setting. Coupled with this Court’s acknowledgment that legislative provisions often admit of multiple reasonable interpretations, the advantages stemming from specialization and expertise provide a robust foundation for deference to administrative decision-makers on legal questions within their mandate (C.U.P.E., at p. 236; McLean, at para. 37). As Professor H. W. Arthurs said: There is no reason to believe that a judge who reads a particular regulatory statute once in his life, perhaps in worst-case circumstances, can read it with greater fidelity to legislative purpose than an administrator who is sworn to uphold that purpose, who strives to do so daily, and is well-aware of the effect upon the purpose of the various alternate interpretations. There is no reason to believe that a legally-trained judge is better qualified to determine the existence or sufficiency or appropriateness of evidence on a given point than a trained economist or engineer, an arbitrator selected by the parties, or simply an experienced tribunal member who decides such cases day in and day out.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2966,7 +2966,7 @@ "text": "There is no reason to believe that a judge whose entire professional life has been spent dealing with disputes one by one should possess an aptitude for issues which arise often because an administrative system dealing with cases in volume has been designed to strike an appropriate balance between efficiency and effective rights of participation. (“Protection against Judicial Review” (1983), 43 R. du B. 277, at p. 289)\n\nJudges of this Court have endorsed both this passage and the broader proposition that specialization and expertise justify the deference owed to administrative decision-makers (National Corn Growers, at p. 1343, per Wilson J., concurring). As early as C.U.P.E., Dickson J. fused expertise and legislative intent by explaining that an administrative body’s specialized expertise can be essential to achieving the purposes of a statutory scheme: The Act calls for a delicate balance between the need to maintain public services, and the need to maintain collective bargaining. Consid­erable sensitivity and unique expertise on the part of Board members is all the more required if the twin purposes of the legislation are to be met. [p. 236]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -2984,7 +2984,7 @@ "text": "Over time, specialized expertise would become the core rationale for deferring to administrative decision-makers (Bradco Construction, at p. 335; Southam, at para. 50; Audrey Macklin, “Standard of Review: Back to the Future?”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 381, at pp. 397-98). Post-Dunsmuir, the Court has been steadfast in confirming the central role of specialization and expertise, affirming their connection to legislative intent, and recognizing that they give administrative decision-makers the “interpretative upper hand” on questions of law (McLean, at para. 40; see also Conway, at para. 53; Mowat, at para. 30; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), [2011] 3 S.C.R. 708, at para. 13; Doré v. Barreau du Québec, [2012] 1 S.C.R. 395, at para. 35; Mouvement laïque, at para. 46; Khosa, at para. 25; Edmonton East, at para. 33).\n\nAlthough the majority’s approach extolls respect for the legislature’s “institutional design choices”, it accords no weight to the institutional advantages of specialization and expertise that administrative decision-makers possess in resolving questions of law. In so doing, the majority disregards the historically accepted reason why the legislature intended to delegate authority to an administrative actor.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3002,7 +3002,7 @@ "text": "Nor are we persuaded by the majority’s claim that “if administrative decision makers are understood to possess specialized expertise on all questions that come before them, the concept of expertise ceases to assist a reviewing court in attempting to distinguish questions for which applying the reasonableness standard is appropriate from those for which it is not”. Here, the majority sets up a false choice: expertise must either be assessed on a case-by-case basis or play no role at all in a theory of judicial review.\n\nWe disagree. While not every decision-maker necessarily has expertise on every issue raised in an administrative proceeding, reviewing courts do not engage in an individualized, case-by-case assessment of specialization and expertise. The theory of deference is based not only on the legislative choice to delegate decisions, but also on institutional expertise and on “the reality that . . . those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Khosa, at para. 25; see also Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, [2011] 3 S.C.R. 616, at para. 53; Edmonton East, at para. 33).\n\nThe exclusion of expertise, specialization and other institutional advantages from the majority’s standard of review framework is not merely a theoretical concern. The removal of the current “conceptual basis” for deference opens the gates to expanded correctness review. The majority’s “presumption” of deference will yield all too easily to justifications for a correctness-oriented framework.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3020,7 +3020,7 @@ "text": "In the majority’s framework, deference gives way whenever the “rule of law” demands it. The majority’s approach to the rule of law, however, flows from a court-centric conception of the rule of law rooted in Dicey’s 19th century philosophy.\n\nThe rule of law is not the rule of courts. A pluralist conception of the rule of law recognizes that courts are not the exclusive guardians of law, and that others in the justice arena have shared responsibility for its development, including administrative decision-makers. Dunsmuir embraced this more inclusive view of the rule of law by acknowledging that the “court-centric conception of the rule of law” had to be “reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (para. 30). As discussed in Dunsmuir, the rule of law is understood as meaning that administrative decision-makers make legal determinations within their mandate, and not that only judges decide questions of law with an unrestricted license to substitute their opinions for those of administrative actors through correctness review (see McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship; The Hon. Thomas A. Cromwell, “What I Think I’ve Learned About Administrative Law” (2017), 30 C.J.A.L.P. 307, at p. 308; Wilson v. Atomic Energy of Canada Ltd., [2016] 1 S.C.R. 770, at para. 31, per Abella J.).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3038,7 +3038,7 @@ "text": "Moreover, central to any definition of the rule of law is access to a fair and efficient dispute resolution process, capable of dispensing timely justice (Hryniak v. Mauldin, [2014] 1 S.C.R. 87, at para. 1). This is an important objective for all litigants, from the sophisticated consumers of administrative justice, to, most significantly, the particularly vulnerable ones (Angus Grant and Lorne Sossin, “Fairness in Context: Achieving Fairness Through Access to Administrative Justice”, in Colleen M. Flood and Lorne Sossin, eds., Administrative Law in Context (3rd ed. 2018), 341, at p. 342). For this reason, access to justice is at the heart of the legislative choice to establish a robust system of administrative law (Grant and Sossin, at pp. 342 and 369-70; Van Harten, et al., at p. 17; Régimbald, at pp. 2-3; McLachlin, Administrative Tribunals and the Courts: An Evolutionary Relationship). As Morissette J.A. has observed: . . . the aims of administrative law . . . generally gravitate towards promoting access to justice. The means contemplated are costless or inexpensive, simple and expeditious procedures, expertise of the decision-makers, coherence of reasons, consistency of results and finality of decisions. (Yves-Marie Morissette, “What is a ‘reasonable decision’?” (2018), 31 C.J.A.L.P. 225, at p. 236)\n\nThese goals are compromised when a narrow conception of the “rule of law” is invoked to impose judicial hegemony over administrative decision-makers. Doing so perverts the purpose of establishing a parallel system of administrative justice, and adds unnecessary expense and complexity for the public.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3056,7 +3056,7 @@ "text": "The majority even calls for a reformulation of the “questions of central importance” category from Dunsmuir and permits courts to substitute their opinions for administrative decision-makers on “questions of central importance to the legal system as a whole”, even if those questions fall squarely within the mandate and expertise of the administrative decision-maker. As noted in Canadian Human Rights Commission, correctness review was permitted only for questions “of central importance to the legal system and outside the specialized expertise of the adjudicator” (para. 28 (emphasis in original)). Broadening this category from its original characterization unduly expands the issues available for judicial substitution. Issues of discrimination, labour rights, and economic regulation of the securities markets (among many others) theoretically raise questions of vital importance for Canada and its legal system. But by ignoring administrative decision-makers’ expertise on these matters, this category will inevitably provide more “room . . . for both mistakes and manipulation” (Andrew Green, “Can There Be Too Much Context in Administrative Law? Setting the Standard of Review in Canadian Administrative Law” (2014), 47 U.B.C. L. Rev. 443, at p. 483). We would leave Dunsmuir’s description of this category undisturbed.[1]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3074,7 +3074,7 @@ "text": "We also disagree with the majority’s reformulation of “legislative intent” to include, for the first time, an invitation for courts to apply correctness review to legal questions whenever an administrative scheme includes a right of appeal. We do not see how appeal rights represent a “different institutional structure” that requires a more searching form of review. The mere fact that a statute contemplates a reviewing role for a court says nothing about the degree of deference required in the review process. Rights of appeal reflect different choices by different legislatures to permit review for different reasons, on issues of fact, law, mixed fact and law, and discretion, among others. Providing parties with a right of appeal can serve several purposes entirely unrelated to the standard of review, including outlining: where the appeal will take place (sometimes, at a different reviewing court than in the routes provided for judicial review); who is eligible to take part; when materials must be filed; how materials must be presented; the reviewing court’s powers on appeal; any leave requirements; and the grounds on which the parties may appeal (among other things). By providing this type of structure and guidance, statutory appeal provisions may allow legislatures to promote efficiency and access to justice, in a way that exclusive reliance on the judicial review procedure would not have.\n\nIn reality, the majority’s position on statutory appeal rights, although couched in language about “giv[ing] effect to the legislature’s institutional design choices”, hinges almost entirely on a textualist argument: the presence of the word “appeal” indicates a legislative intent that courts apply the same standards of review found in civil appellate jurisprudence.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3092,7 +3092,7 @@ "text": "The majority’s reliance on the “presumption of consistent expression” in relation to the single word “appeal” is misplaced and disregards long-accepted institutional distinctions between how courts and administrative decision-makers function. The language in each setting is different; the mandates are different; the policy bases are different. The idea that Housen v. Nikolaisen, [2002] 2 S.C.R. 235, must be inflexibly applied to every right of “appeal” within a statute — with no regard for the broader purposes of the statutory scheme or the practical implications of greater judicial involvement within it — is entirely unsupported by our jurisprudence.\n\nIn addition, the majority’s claim that legislatures “d[o] not speak in vain” is irreconcilable with its treatment of privative clauses, which play no role in its standard of review framework. If, as the majority claims, Parliament’s decision to provide appeal routes must influence the standard of review analysis, there is no principled reason why Parliament’s decision via privative clauses to prohibit appeals should not be given comparable effect.[2]\n\nIn any event, legislatures in this country have known for at least 25 years since Pezim that this Court has not treated statutory rights of appeal as a determinative reflection of legislative intent regarding the standard of review (Pezim, at p. 590). Against this reality, the continued use by legislatures of the term “appeal” cannot be imbued with the intent that the majority retroactively ascribes to it; doing so is inconsistent with the principle that legislatures are presumed to enact legislation in compliance with existing common law rules (Ruth Sullivan, Statutory Interpretation (3rd ed. 2016), at p. 315).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3110,7 +3110,7 @@ "text": "Those legislatures, moreover, understood from our jurisprudence that this Court was committed to respecting standards of review that were statutorily prescribed, as British Columbia alone has done.[3] We agree with the Attorney General of Canada’s position in the companion appeals of Bell Canada v. Canada (Attorney General), [2019] 4 S.C.R. 845, that, absent exceptional circumstances, the existence of a statutory right of appeal does not displace the presumption that the standard of reasonableness applies.[4] The majority, however, has inexplicably chosen the template proposed by the amici,[5] recommending a sweeping overhaul of our approach to legislative intent and to the determination of the standard of review.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3128,7 +3128,7 @@ "text": "The result reached by the majority means that hundreds of administrative decision-makers subject to different kinds of statutory rights of appeal — some in highly specialized fields, such as broadcasting, securities regulation and international trade — will now be subject to an irrebuttable presumption of correctness review. This has the potential to cause a stampede of litigation. Reviewing courts will have license to freely revisit legal questions on matters squarely within the expertise of administrative decision-makers, even if they are of no broader consequence outside of their administrative regimes. Even if specialized decision-makers provide reasonable interpretations of highly technical statutes with which they work daily, even if they provide internally consistent interpretations responsive to the parties’ submissions and consistent with the text, context and purpose of the governing scheme, the administrative body’s past practices and decisions, the common law, prior judicial rulings and international law, those interpretations can still be set aside by a reviewing court that simply takes a different view of the relevant statute. This risks undermining the integrity of administrative proceedings whenever there is a statutory right of appeal, rendering them little more than rehearsals for a judicial appeal — the inverse of the legislative intent to establish a specialized regime and entrust certain legal and policy questions to non-judicial actors.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3146,7 +3146,7 @@ "text": "Ironically, the majority’s approach will be a roadblock to its promise of simplicity. Elevating appeal clauses to indicators of correctness review creates a two-tier system of administrative law: one tier that defers to the expertise of administrative decision-makers where there is no appeal clause; and another tier where such clauses permit judges to substitute their own views of the legal issues at the core of those decision-makers’ mandates. Within the second tier, the application of appellate law principles will inevitably create confusion by encouraging segmentation in judicial review (Mouvement laïque, at para. 173, per Abella J., concurring in part; see also Paul Daly, “Struggling Towards Coherence in Canadian Administrative Law? Recent Cases on Standard of Review and Reasonableness” (2016), 62 McGill L.J. 527, at pp. 542-43; the Hon. Joseph T. Robertson, “Identifying the Review Standard: Administrative Deference in a Nutshell” (2017), 68 U.N.B.L.J. 145, at p. 162). Courts will be left with the task of identifying palpable and overriding errors for factual questions, extricating legal issues from questions of mixed fact and law, reviewing questions of law de novo, and potentially having to apply judicial review and appellate standards interchangeably if an applicant challenges in one proceeding multiple aspects of an administrative decision, some falling within an appeal clause and others not. It is an invitation to complexity and a barrier to access to justice.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3164,7 +3164,7 @@ "text": "The majority’s reasons “roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess” (Khosa, at para. 26). The reasons elevate statutory rights of appeal to a determinative factor based on a formalistic approach that ignores the legislature’s intention to leave certain legal and policy questions to specialized administrative decision-makers. This unravelling of Canada’s carefully developed, deferential approach to administrative law returns us to the “black letter law” approach found in Anisminic and cases like Metropolitan Life whereby specialized decision-makers were subject to the pre-eminent determinations of a judge. Rather than building on Dunsmuir, which recognized that specialization is fundamentally intertwined with the legislative choice to delegate particular subject matters to administrative decision-makers, the majority’s reasons banish expertise from the standard of review analysis entirely, opening the door to a host of new correctness categories which remain open to further expansion. The majority’s approach not only erodes the presumption of deference; it erodes confidence in the existence — and desirability — of the “shared enterprises in the administrative state” of “[l]aw-making and legal interpretation” between courts and administrative decision-makers (Stack, at p. 310).\n\nBut the aspect of the majority’s decision with the greatest potential to undermine both the integrity of this Court’s decisions, and public confidence in the stability of the law, is its disregard for precedent and stare decisis.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3182,7 +3182,7 @@ "text": "Stare decisis places significant limits on this Court’s ability to overturn its precedents. Justice Rothstein described some of these limits in Canada v. Craig, [2012] 2 S.C.R. 489, the case about horizontal stare decisis on which the majority relies: The question of whether this Court should overrule one of its own prior decisions was addressed recently in Ontario (Attorney General) v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3. At paragraph 56, Chief Justice McLachlin and LeBel J., in joint majority reasons, noted that overturning a precedent of this Court is a step not to be lightly undertaken. This is especially so when the precedent represents the considered views of firm majorities (para. 57). Nonetheless, this Court has overruled its own decisions on a number of occasions. (See R. v. Chaulk, [1990] 3 S.C.R. 1303, at p. 1353, per Lamer C.J., for the majority; R. v. B. (K.G.), [1993] 1 S.C.R. 740; R. v. Robinson, [1996] 1 S.C.R. 683.) However, the Court must be satisfied based on compelling reasons that the precedent was wrongly decided and should be overruled . . . . Courts must proceed with caution when deciding to overrule a prior decision. In Queensland v. Commonwealth (1977), 139 C.L.R. 585 (H.C.A.), at p. 599, Justice Gibbs articulated the required approach succinctly: No Justice is entitled to ignore the decisions and reasoning of his predecessors, and to arrive at his own judgment as though the pages of the law reports were blank, or as though the authority of a decision did not survive beyond the rising of the Court. A Justice, unlike a legislator, cannot introduce a programme of reform which sets at nought decisions formerly made and principles formerly established.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3200,7 +3200,7 @@ "text": "It is only after the most careful and respectful consideration of the earlier decision, and after giving due weight to all the circumstances, that a Justice may give effect to his own opinions in preference to an earlier decision of the Court. [Emphasis added; paras. 24-26.]\n\nApex courts in several jurisdictions outside Canada have similarly stressed the need for caution and compelling justification before departing from precedent. The United States Supreme Court refrains from overruling its past decisions absent a “special justification”, which must be over and above the belief that a prior case was wrongly decided (Kimble v. Marvel Entertainment, LLC, 135 S. Ct. 2401 (2015), at p. 2409; see also Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014), at p. 266; Kisor v. Wilkie, 139 S. Ct. 2400 (2019), at pp. 2418 and 2422; Bryan A. Garner et al., The Law of Judicial Precedent (2016), at pp. 35-36).\n\nSimilarly, the House of Lords “require[d] much more than doubts as to the correctness of [a past decision] to justify departing from it” (Fitzleet Estates Ltd. v. Cherry (1977), 51 T.C. 708, at p. 718), an approach that the United Kingdom Supreme Court continues to endorse (R. v. Taylor, [2016] UKSC 5, [2016] 4 All E.R. 617, at para. 19; Willers v. Joyce (No. 2), [2016] UKSC 44, [2017] 2 All E.R. 383, at para. 7; Knauer v. Ministry of Justice, [2016] UKSC 9, [2016] 4 All E.R. 897, at paras. 22-23).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3218,7 +3218,7 @@ "text": "New Zealand’s Supreme Court views “caution, often considerable caution” as the “touchstone” of its approach to horizontal stare decisis, and has emphasized that it will not depart from precedent “merely because, if the matter were being decided afresh, the Court might take a different view” (Couch v. Attorney-General (No. 2), [2010] NZSC 27, [2010] 3 N.Z.L.R. 149, at paras. 105, per Tipping J., and 209, per McGrath J.).\n\nRestraint and respect for precedent also guide the High Court of Australia and South Africa’s Constitutional Court when applying stare decisis (Lee v. New South Wales Crime Commission, [2013] HCA 39, 302 A.L.R. 363, at paras. 62-66 and 70; Camps Bay Ratepayers’ and Residents’ Association v. Harrison, [2010] ZACC 19, 2011 (4) S.A. 42, at pp. 55-56; Buffalo City Metropolitan Municipality v. Asla Construction (Pty) Ltd., [2019] ZACC 15, 2019 (4) S.A. 331, at para. 65).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3236,7 +3236,7 @@ "text": "The virtues of horizontal stare decisis are widely recognized. The doctrine “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process” (Kimble, at p. 2409, citing Payne v. Tennessee, 501 U.S. 808 (1991), at p. 827). This Court has stressed the importance of stare decisis for “[c]ertainty in the law” (Canada (Attorney General) v. Bedford, [2013] 3 S.C.R. 1101, at para. 38; R. v. Bernard, [1988] 2 S.C.R. 833, at p. 849; Minister of Indian Affairs and Northern Development v. Ranville, [1982] 2 S.C.R. 518, at p. 527). Other courts have described stare decisis as a “foundation stone of the rule of law” (Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014), at p. 798; Kimble, at p. 2409; Kisor, at p. 2422; see also Camps Bay, at pp. 55-56; Jeremy Waldron, “Stare Decisis and the Rule of Law: A Layered Approach” (2012), 111 Mich. L. Rev. 1, at p. 28; Lewis F. Powell, Jr., “Stare Decisis and Judicial Restraint” (1990), 47 Wash. & Lee L. Rev. 281, at p. 288).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3254,7 +3254,7 @@ "text": "Respect for precedent also safeguards this Court’s institutional legitimacy. The precedential value of a judgment of this Court does not “expire with the tenure of the particular panel of judges that decided it” (Plourde v. Wal-Mart Canada Corp., [2009] 3 S.C.R. 465, at para. 13). American cases have stressed similar themes: There is . . . a point beyond which frequent overruling would overtax the country’s belief in the Court’s good faith. Despite the variety of reasons that may inform and justify a decision to overrule, we cannot forget that such a decision is usually perceived (and perceived correctly) as, at the least, a statement that a prior decision was wrong. There is a limit to the amount of error that can plausibly be imputed to prior Courts. If that limit should be exceeded, disturbance of prior rulings would be taken as evidence that justifiable reexamination of principle had given way to drives for particular results in the short term. The legitimacy of the Court would fade with the frequency of its vacillation. (Planned Parenthood of Southeastern Pennsylvania v. Casey, Governor of Pennsylvania, 505 U.S. 833 (1992), at p. 866; see also Florida Department of Health and Rehabilitative Services v. Florida Nursing Home Association, 450 U.S. 147 (1981), at p. 153, per Stevens J., concurring.)\n\nSeveral scholars have made this point as well (see e.g., Michael J. Gerhardt, The Power of Precedent (2008), at p. 18; Garner et al., at p. 391). Aharon Barak has warned that overruling precedent damages the public’s conception of the judicial role, and undermines the respect in which the public holds the courts and its faith in them. Precedent should not resemble a ticket valid only for the day of purchase. (“Overruling Precedent” (1986), 21 Is.L.R. 269, at p. 275)", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3272,7 +3272,7 @@ "text": "The majority’s reasons, in our view, disregard the high threshold required to overturn one of this Court’s decisions. The justification for the majority abandoning this Court’s long-standing view of how statutory appeal clauses impact the standard of review analysis is that this Court’s approach was “unsound in principle” and criticized by judges and academics. The majority also suggests that the Court’s decisions set up an “unworkable and unnecessarily complex” system of judicial review. Abandoning them, the majority argues, would promote the values underlying stare decisis, namely “clarity and certainty in the law”. In doing so, the majority discards several of this Court’s bedrock administrative law principles.\n\nThe majority leaves unaddressed the most significant rejection of this Court’s jurisprudence in its reasons — its decision to change the entire “conceptual basis” for judicial review by excluding specialization, expertise and other institutional advantages from the analysis. The lack of any justification for this foundational shift — repeatedly invoked by the majority to sanitize further overturning of precedent — undercuts the majority’s stated respect for stare decisis principles.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3290,7 +3290,7 @@ "text": "The majority explains its decision to overrule the Court’s prior decisions about appeal clauses by asserting that these precedents had “no satisfactory justification”. It does not point, however, to any arguments different from those heard and rejected by other panels of this Court over the decades whose decisions are being discarded. Instead, the majority substitutes its own preferred approach to interpreting statutory rights of appeal — an approach rejected by several prior panels of this Court in a line of decisions stretching back three decades. The rejection of such an approach was explicitly reaffirmed no fewer than four times in the past ten years (Khosa, at para. 26; Mowat, at paras. 30-31; Mouvement laïque, at para. 38; Edmonton East, at paras. 27-31; see also McLean, at para. 21).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3308,7 +3308,7 @@ "text": "Overruling these judgments flouts stare decisis principles, which prohibit courts from overturning past decisions which “simply represen[t] a preferred choice with which the current Bench does not agree” (Couch, at para. 105; see also Knauer, at para. 22; Casey, at p. 864). “[T]he entire idea of stare decisis is that judges do not get to reverse a decision just because they never liked it in the first instance” (Knick v. Township of Scott, Pennsylvania, 139 S. Ct. 2162 (2019), at p. 2190, per Kagan J., dissenting). As the United States Supreme Court noted in Kimble: . . . an argument that we got something wrong — even a good argument to that effect — cannot by itself justify scrapping settled precedent. Or otherwise said, it is not alone sufficient that we would decide a case differently now than we did then. To reverse course, we require as well what we have termed a “special justification” — over and above the belief “that the precedent was wrongly decided.” [Citation omitted; p. 2409.]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3326,7 +3326,7 @@ "text": "But it is the unprecedented wholesale rejection of an entire body of jurisprudence that is particularly unsettling. The affected cases are too numerous to list in full here. It includes many decisions conducting deferential review even in the face of a statutory right of appeal (Pezim; Southam; Committee for Equal Treatment of Asbestos Minority Shareholders v. Ontario (Securities Commission), [2001] 2 S.C.R. 132; Dr. Q; Ryan; Cartaway; VIA Rail; Association des courtiers et agents immobiliers du Québec v. Proprio Direct inc., [2008] 2 S.C.R. 195; Nolan v. Kerry (Canada) Inc., [2009] 2 S.C.R. 678; McLean; Bell Canada (2009); ATCO Gas; Mouvement laïque; Igloo Vikski; Edmonton East) and bedrock judgments affirming the relevance of administrative expertise to the standard of review analysis and to “home statute” deference (C.U.P.E.; National Corn Growers; Domtar Inc.; Bradco Construction; Southam; Pushpanathan; Alberta Teachers’ Association; Canadian Human Rights Commission, among many others).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3344,7 +3344,7 @@ "text": "Most of those decisions were decided unanimously or by strong majorities. At no point, however, does the majority acknowledge this Court’s strong reluctance to overturn precedents that “represen[t] the considered views of firm majorities” (Craig, at para. 24; Ontario (Attorney General) v. Fraser, [2011] 2 S.C.R. 3, at para. 57; see also Nishi v. Rascal Trucking Ltd., [2013] 2 S.C.R. 438, at paras. 23-24), or to overrule decisions of a “recent vintage” (Fraser, at para. 57; see also Nishi, at para. 23). The decisions the majority does rely on, by contrast, involved overturning usually only one precedent and almost always an older one: Craig overruled a 34-year-old precedent; R. v. Henry, [2005] 3 S.C.R. 609, overruled a 19-year-old precedent (and another 15-year-old precedent, in part); and the dissenting judges in Bernard would have overruled a 10-year-old precedent.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3362,7 +3362,7 @@ "text": "The majority’s decision to overturn precedent also has the potential to disturb settled interpretations of many statutes that contain a right of appeal. Under the majority’s approach, every existing interpretation of such statutes by an administrative body that has been affirmed under a reasonableness standard of review will be open to fresh challenge. In McLean, for example, this Court acknowledged that a limitations period in British Columbia’s Securities Act[6] had two reasonable interpretations, but deferred to the one the Commission preferred based on deferential review. We see no reason why an individual in the same situation as Ms. McLean could not now revisit our Court’s decision through the statutory right of appeal in the Securities Act, and insist that a new reviewing court offer its definitive view of the relevant limitations period now that appeal clauses are interpreted to permit judicial substitution rather than deference.\n\nThe majority does not address the chaos that such legal uncertainty will generate for those who rely on settled interpretations of administrative statutes to structure their affairs, despite the fact that protecting these reliance interests is a well-recognized and especially powerful reason for respecting precedent (Garner et al., at pp. 404-11; Neil Duxbury, The Nature and Authority of Precedent (2008), at pp. 118‑19; Kimble, at pp. 2410-11). By changing the entire status quo, the majority’s approach will undermine legal certainty — “the foundational principle upon which the common law relies” (Bedford, at para. 38; see also Cromwell, at p. 315).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3380,7 +3380,7 @@ "text": "Moreover, if this Court had for over 30 years significantly misconstrued the purpose of statutory appeal routes by failing to recognize what this majority has ultimately discerned — that in enacting such routes, legislatures were unequivocally directing courts to review de novo every question of law that an administrative body addresses, regardless of that body’s expertise — legislatures across Canada were free to clarify this interpretation and endorse the majority’s favoured approach through legislative amendment. Given the possibility — and continued absence — of legislative correction, the case for overturning our past decisions is even less compelling (Binus v. The Queen, [1967] S.C.R. 594, at p. 601; see also Kimble, at p. 2409; Kisor, at pp. 2422-23; Bilski v. Kappos, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office, 561 U.S. 593 (2010), at pp. 601-2).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3398,7 +3398,7 @@ "text": "Each of these rationales for adhering to precedent — consistent affirmation, reliance interests and the possibility of legislative correction — was recently endorsed by the United States Supreme Court in Kisor. There, the Court invoked stare decisis to uphold two administrative law precedents which urged deference to administrative agencies when they interpreted ambiguous provisions in their regulations (Bowles, Price Administrator v. Seminole Rock & Sand Co., 325 U.S. 410 (1945); Auer v. Robbins, 519 U.S. 452 (1997)). Writing for the majority on the issue of stare decisis, Justice Kagan explained at length why the doctrine barred the Court from overturning Auer or Seminole Rock. To begin, Justice Kagan reiterated the importance of stare decisis and the need for special justification to overcome its demands. She then explained that stare decisis carried even greater force than usual when applied to two decisions that had been affirmed by a “long line of precedents” going back 75 years or more and cited by lower courts thousands of times (p. 2422). She noted that overturning the challenged precedents would cast doubt on many settled statutory interpretations and invite relitigation of cases (p. 2422). Finally, Justice Kagan reasoned that Congress remained free to overturn the cases if the Court had misconstrued legislative intent: . . . even if we are wrong about Auer, “Congress remains free to alter what we have done.” In a constitutional case, only we can correct our error. But that is not so here. Our deference decisions are “balls tossed into Congress’s court, for acceptance or not as that branch elects.” And so far, at least, Congress has chosen acceptance.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3416,7 +3416,7 @@ "text": "It could amend the APA or any specific statute to require the sort of de novo review of regulatory interpretations that Kisor favors. Instead, for approaching a century, it has let our deference regime work side-by-side with both the APA and the many statutes delegating rulemaking power to agencies. It has done so even after we made clear that our deference decisions reflect a presumption about congressional intent. And it has done so even after Members of this Court began to raise questions about the doctrine. Given that history — and Congress’s continuing ability to take up Kisor’s arguments — we would need a particularly “special justification” to now reverse Auer. [Citations omitted; pp. 2422-23.]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3434,7 +3434,7 @@ "text": "In the face of these compelling reasons for adhering to precedent, many of which have found resonance in this Court’s jurisprudence, the majority’s reliance on “judicial and academic criticism” falls far short of overcoming the demands of stare decisis. It is hard to see why the obiter views of the handful of Canadian judges referred to by the majority should be determinative or even persuasive. The majority omits the views of any academics or judges who have voiced support for a strong presumption of deference without identifying our approach to statutory rights of appeal as cause for concern (Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 109; Green, at pp. 489-90; Matthew Lewans, Administrative Law and Judicial Deference (2016); Jonathan M. Coady, “The Time Has Come: Standard of Review in Canadian Administrative Law” (2017), 68 U.N.B.L.J. 87; the Hon. John M. Evans, “Standards of Review in Administrative Law” (2013), 26 C.J.A.L.P. 67, at p. 79; the Hon. John M. Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101; Jerry V. DeMarco, “Seeking Simplicity in Canada’s Complex World of Judicial Review” (2019), 32 C.J.A.L.P. 67).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3452,7 +3452,7 @@ "text": "A selective assortment of criticism is not evidence of generalized criticism or unworkability. This Court frequently tackles contentious, high-profile cases that engender strong and persisting divisions of opinion. The public looks to us to definitively resolve those cases, regardless of the composition of the Court. As Hayne J. noted in Lee: To regard the judgments of this Court as open to reconsideration whenever a new argument is found more attractive than the principle expressed in a standing decision is to overlook the function which a final court of appeal must perform in defining the law. In difficult areas of the law, differences of legal opinion are inevitable; before a final court of appeal, the choice between competing legal solutions oftentimes turns on the emphasis or weight given by each of the judges to one factor against a countervailing factor. . . . In such cases, the decision itself determines which solution is, for the purposes of the current law, correct. It is not to the point to argue in the next case that, leaving the particular decision out of account, another solution is better supported by legal theory. Such an approach would diminish the authority and finality of the judgments of this Court. As the function of defining the law is vested in the Court rather than in the justices who compose it, a decision of the Court will be followed in subsequent cases by the Court, however composed, subject to the exceptional power which resides in the Court to permit reconsideration. Accordingly, as one commentator has put the point: “the previous decision is to be treated as the primary premise from which other arguments follow, and not just as one potential premise among an aggregate of competing premises”.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3470,7 +3470,7 @@ "text": "[Emphasis in original; footnote omitted.] (paras. 65-66, citing Baker v. Campbell (1983), 153 C.L.R. 52 (H.C.A.), at pp. 102-3.)\n\nThis Court, in fact, has been clear that “criticism of a judgment is not sufficient to justify overruling it” (Fraser, at para. 86). Differences of legal and public opinion are a natural by-product of contentious cases like R. v. Jordan, [2016] 1 S.C.R. 631, or even Housen, which, as this Court acknowledged, was initially applied by appeal courts with “varying degrees of enthusiasm” (H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, at para. 76; see also Paul M. Perell, “The Standard of Appellate Review and The Ironies of Housen v. Nikolaisen” (2004), 28 Adv. Q. 40, at p. 53; Mike Madden, “Conquering the Common Law Hydra: A Probably Correct and Reasonable Overview of Current Standards of Appellate and Judicial Review” (2010), 36 Adv. Q. 269, at pp. 278-79 and 293; Paul J. Pape and John J. Adair, “Unreasonable review: The losing party and the palpable and overriding error standard” (2008), 27 Adv. J. 6, at p. 8; Geoff R. Hall, “Two Unsettled Questions in the Law of Contractual Interpretation: A Call to the Supreme Court of Canada” (2011), 50 Can. Bus. L.J. 434, at p. 436).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3488,7 +3488,7 @@ "text": "To justify circumventing this Court’s jurisprudence, the majority claims that the precedents being overturned themselves departed from the approach to statutory rights of appeal under the pragmatic and functional test. That, with respect, is wrong. Ever since Bell Canada (1989) and in several subsequent decisions outlined earlier in these reasons, statutory rights of appeal have played little or no role in the standard of review analysis. Moreover, in pre-Dunsmuir cases, statutory rights of appeal were still seen as only one factor among others — and not as unequivocal indicators of correctness review (see, for example, Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., [2001] 2 S.C.R. 100, at paras. 27-33; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at paras. 23-24; Harvard College v. Canada (Commissioner of Patents), [2002] 4 S.C.R. 45, at paras. 149-51). Our pre- and post-Dunsmuir cases on statutory rights of appeal shared in common an unwavering commitment to determining the standard of review in administrative proceedings using administrative law principles, even when appeal rights were involved.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3506,7 +3506,7 @@ "text": "For the majority, the elimination of the contextual factors appears to have justified the reconstruction of the whole judicial review framework. Yet the elimination of the contextual analysis was all but complete in our post-Dunsmuir jurisprudence, and does not support the foundational changes to judicial review in the majority’s decision. Neither that development, nor the majority’s assertion that our precedents have proven “unclear and unduly complex”, justifies the conclusion that all of our administrative law precedents — even those unconnected to the practical difficulties in applying Dunsmuir — are suddenly fair game.\n\nThis Court is overturning a long line of well-established and recently-affirmed precedents in a whole area of law, including several unanimous or strong majority judgments. There is no principled justification for such a dramatic departure from this Court’s existing jurisprudence. Going Forward", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3524,7 +3524,7 @@ "text": "In our view, a more modest approach to modifying our past decisions, one that goes no further than necessary to clarify the law and its application, is justified. “[W]hen a court does choose to overrule its own precedents, it should do so carefully, with moderation, and with due regard for all the important considerations that undergird the doctrine” (Garner et al., at pp. 41-42). Such an approach to changing precedent preserves the integrity of the judicial process and, at a more conceptual level, of the law itself as a social construct. Michael J. Gerhardt summarized this approach eloquently: Judicial modesty is . . . a disposition to respect precedents (as embodying the opinions of others), to learn from their and others’ experiences, and to decide cases incrementally to minimize conflicts with either earlier opinions of the Court or other constitutional actors. [p. 7]", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3542,7 +3542,7 @@ "text": "Judicial modesty promotes the responsible development of the common law. Lord Tom Bingham described that process in his seminal work, The Rule of Law (2010): . . . it is one thing to move the law a little further along a line on which it is already moving, or to adapt it to accord with modern views and practices; it is quite another to seek to recast the law in a radically innovative or adventurous way, because that is to make it uncertain and unpredictable, features which are the antithesis of the rule of law. [pp. 45-46] (See also Robert J. Sharpe, Good Judgment: Making Judicial Decisions (2018), at p. 93; Beverley McLachlin, “The Role of the Supreme Court of Canada in Shaping the Common Law”, in Paul Daly, ed., Apex Courts and the Common Law (2019), 25, at p. 35; R. v. Salituro, [1991] 3 S.C.R. 654, at p. 670; Friedmann Equity Developments Inc. v. Final Note Ltd., [2000] 1 S.C.R. 842, at para. 42; R. v. Kang-Brown, [2008] 1 S.C.R. 456, at paras. 14-16, per LeBel J., and 73-74, per Binnie J., concurring.)\n\nLord Bingham’s comments highlight that a nuanced balance must be struck between maintaining the stability of the common law and ensuring that the law is flexible and responsive enough to adapt to new circumstances and shifts in societal norms. Stare decisis plays a critical role in maintaining that balance and upholding the rule of law. When stare decisis is respected, precedent acts as a stabilizing force: providing certainty as to what the law is, consistency that allows those subject to the law to order their affairs accordingly, and continuity that protects reliance on those legal consequences. Stare decisis is at the heart of the iterative development of the common law, fostering progressive, incremental and responsible change.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3560,7 +3560,7 @@ "text": "So what do we suggest? We support a standard of review framework with a meaningful rule of deference, based on both the legislative choice to delegate decision-making authority to an administrative actor and on the specialized expertise that these decision-makers possess and develop in applying their mandates. Outside of the three remaining correctness categories from Dunsmuir — and absent clear and explicit legislative direction on the standard of review — administrative decisions should be reviewed for reasonableness. Like the majority, we support eliminating the category of “true questions of jurisdiction” and foreclosing the use of the contextual factors identified in Dunsmuir. These developments introduce incremental changes to our judicial review framework, while respecting its underlying principles and placing the ball in the legislatures’ court to modify the standards of review if they wish.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3578,7 +3578,7 @@ "text": "To the extent that concerns were expressed about the quality of administrative decision making by some interveners who represented particularly vulnerable groups, we agree that they must be taken seriously. But the solution does not lie in authorizing more incursions into the administrative system by generalist judges who lack the expertise necessary to implement these sensitive mandates. Any perceived shortcomings in administrative decision making are not solved by permitting de novo review of every legal decision by a court and, as a result, adding to the delay and cost of obtaining a final decision. The solution lies instead in ensuring the proper qualifications and training of administrative decision-makers. Like courts, administrative actors are fully capable of, and responsible for, improving the quality of their own decision-making processes, thereby strengthening access to justice in the administrative justice system.\n\nWe also acknowledge that this Court should offer additional direction on conducting reasonableness review.[7] We fear, however, that the majority’s multi-factored, open-ended list of “constraints” on administrative decision making will encourage reviewing courts to dissect administrative reasons in a “line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., [2013] 2 S.C.R. 458, at para. 54). These “constraints” may function in practice as a wide-ranging catalogue of hypothetical errors to justify quashing an administrative decision — a checklist with unsettling similarities to the series of “jurisdictional errors” spelled out in Anisminic itself.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3596,7 +3596,7 @@ "text": "Structuring reasonableness review in this fashion effectively imposes on administrative decision-makers a higher standard of justification than that applied to trial judges. Such an approach undercuts deference and revives a long-abandoned posture of suspicion towards administrative decision making. We are also concerned by the majority’s warning that administrative decision-makers cannot “arrogate powers to themselves that they were never intended to have”, an unhelpful truism that risks reintroducing the tortured concept of “jurisdictional error” by another name.\n\nWe would advocate a continued approach to reasonableness review which focuses on the concept of deference and what it requires of reviewing courts. Curial deference, after all, is the hallmark of reasonableness review, setting it apart from the substitution of opinion permitted under the correctness standard. The choice of a particular standard of review — whether described as “correctness”, “reasonableness” or in other terms — is fundamentally about “whether or not a reviewing court should defer”[8] to an administrative decision (see Dunsmuir, at para. 141, per Binnie J., concurring; Régimbald, at pp. 539-40). If courts, therefore, are to properly conduct “reasonableness” review, they must properly understand what deference means.\n\nIn our view, deference imposes three requirements on courts conducting reasonableness review. It informs the attitude a reviewing court must adopt towards an administrative decision-maker; it affects how a court frames the question it must answer on judicial review; and it affects how a reviewing court evaluates challenges to an administrative decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3614,7 +3614,7 @@ "text": "First and foremost, deference is an “attitude of the court” conducting reasonableness review (Dunsmuir, at para. 48). Deference mandates respect for the legislative choice to entrust a decision to administrative actors rather than to the courts, and for the important role that administrative decision-makers play in upholding and applying the rule of law (Toronto (City) v. C.U.P.E., Local 79, [2003] 3 S.C.R. 77, at para. 131, per LeBel J., concurring). Deference also requires respect for administrative decision-makers, their specialized expertise and the institutional setting in which they operate (Dunsmuir, at paras. 48-49). Reviewing courts must pay “respectful attention” to the reasons offered for an administrative decision, make a genuine effort to understand why the decision was made, and give the decision a fair and generous construction in light of the entire record (Newfoundland Nurses, at paras. 11-14 and 17).\n\nSecond, deference affects how a court frames the question it must answer when conducting judicial review. A reviewing court does not ask how it would have resolved an issue, but rather, whether the answer provided by the administrative decision-maker has been shown to be unreasonable (Khosa, at paras. 59 and 61-62; Dunsmuir, at para. 47). Framing the inquiry in this way ensures that the administrative decision under review is the focus of the analysis.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3632,7 +3632,7 @@ "text": "This Court has often endorsed this approach to conducting reasonableness review. In Ryan, for example, Iacobucci J. explained: . . . when deciding whether an administrative action was unreasonable, a court should not at any point ask itself what the correct decision would have been. . . . The standard of reasonableness does not imply that a decision-maker is merely afforded a “margin of error” around what the court believes is the correct result. . . . Unlike a review for correctness, there will often be no single right answer to the questions that are under review against the standard of reasonableness. . . . Even if there could be, notionally, a single best answer, it is not the court’s role to seek this out when deciding if the decision was unreasonable. [paras. 50-51] (See also Volvo Canada Ltd. v. U.A.W., Local 720, [1980] 1 S.C.R. 178, at p. 214; Toronto (City), at paras. 94-95, per LeBel J., concurring; VIA Rail, at para. 101; Mason v. Minister of Citizenship and Immigration, 2019 FC 1251, at para. 22 (CanLII), per Grammond J.; Régimbald, at p. 539; Sharpe, at pp. 204 and 208; Paul Daly, “The Signal and the Noise in Administrative Law” (2017), 68 U.N.B.L.J. 67, at p. 85; Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 107.)", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3650,7 +3650,7 @@ "text": "Third, deferential review impacts how a reviewing court evaluates challenges to an administrative decision. Deference requires the applicant seeking judicial review to bear the onus of showing that the decision was unreasonable (Williams Lake Indian Band v. Canada (Aboriginal Affairs and Northern Development), [2018] 1 S.C.R. 83, at para. 108; Mission Institution v. Khela, [2014] 1 S.C.R. 502, at para. 64; May v. Ferndale Institution, [2005] 3 S.C.R. 809, at para. 71; Ryan, at para. 48; Southam, at para. 61; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115, at p. 130). Focusing on whether the applicant has demonstrated that the decision is unreasonable reinforces the central role that administrative decisions play in a properly deferential review process, and confirms that the decision-maker does not have to persuade the court that its decision is reasonable.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3668,7 +3668,7 @@ "text": "Assessing whether a decision is reasonable also requires a qualitative assessment. Reasonableness is a concept that pervades the law but is difficult to define with precision (Dunsmuir, at para. 46). It requires, by its very nature, a fact-specific inquiry that involves a certain understanding of common experience. Reasonableness cannot be reduced to a formula or a checklist of factors, many of which will not be relevant to a particular decision. Ultimately, whether an administrative decision is reasonable will depend on the context (Catalyst Paper Corp. v. North Cowichan (District), [2012] 1 S.C.R. 5, at para. 18). Administrative law covers an infinite variety of decisions and decision-making contexts, as LeBel J. colourfully explained in Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, at para. 158 (dissenting in part, but not on this point): . . . not all administrative bodies are the same. Indeed, this is an understatement. At first glance, labour boards, police commissions, and milk control boards may seem to have about as much in common as assembly lines, cops, and cows! Administrative bodies do, of course, have some common features, but the diversity of their powers, mandate and structure is such that to apply particular standards from one context to another might well be entirely inappropriate.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3686,7 +3686,7 @@ "text": "Deference, in our view, requires approaching each administrative decision on its own terms and in its own context. But we emphasize that the inherently contextual nature of reasonableness review does not mean that the degree of scrutiny applied by a reviewing court varies (Alberta Teachers’ Association, at para. 47; Wilson, at para. 18). It merely means that when assessing a challenge to an administrative decision, a reviewing court must be attentive to all relevant circumstances, including the reasons offered to support the decision, the record, the statutory scheme and the particular issues raised by the applicant, among other factors (see, for example, Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, at para. 40; Newfoundland Nurses, at para. 18; Van Harten et al., at p. 794). Without this context, it is impossible to determine what constitutes a sufficiently compelling justification to quash a decision under reasonableness review. Context may make a challenge to an administrative decision more or less persuasive — but it does not alter the deferential posture of the reviewing court (Suresh, at para. 40).\n\nDeference, however, does not require reviewing courts to shirk their obligation to review the decision. So long as they maintain a respectful attitude, frame the judicial review inquiry properly and demand compelling justification for quashing a decision, reviewing courts are entitled to meaningfully probe an administrative decision. A thorough evaluation by a reviewing court is not “disguised correctness review”, as some have used the phrase. Deference, after all, stems from respect, not inattention to detail.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3704,7 +3704,7 @@ "text": "Bearing this in mind, we offer the following suggestions for conducting reasonableness review. We begin with situations where reasons are required.[9]\n\nThe administrative decision is the focal point of the review exercise. Where reasons are provided, they serve as the natural starting point to determine whether the decision-maker acted reasonably (Williams Lake, at para. 36). By beginning with the reasons offered for the decision, read in light of the surrounding context and the grounds raised to challenge the decision, reviewing courts provide meaningful oversight while respecting the legitimacy of specialized administrative decision making.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3722,7 +3722,7 @@ "text": "Reviewing courts should approach the reasons with respect for the specialized decision-makers, the significant role they have been assigned and the institutional context chosen by the legislator. Reasons should be approached generously, on their own terms. Reviewing courts should be hesitant to second-guess operational implications, practical challenges and on-the-ground knowledge used to justify an administrative decision. Reviewing courts must also remain alert to specialized concepts or language used in an administrative decision that may be unfamiliar to a generalist judge (Newfoundland Nurses, at para. 13; Igloo Vikski, at paras. 17 and 30). When confronted with unfamiliar language or modes of reasoning, judges should acknowledge that such differences are an inevitable, intentional and invaluable by-product of the legislative choice to assign a matter to the administrative system. They may lend considerable force to an administrative decision and, by the same token, render an applicant’s challenge to that decision less compelling. Reviewing courts scrutinizing an administrative body’s decision under the reasonableness framework should therefore keep in mind that the administrative body holds the “interpretative upper hand” (McLean, at para. 40).\n\nThroughout the review process, a court conducting deferential review must view claims of administrative error in context and with caution, cognizant of the need to avoid substituting its opinion for that of those empowered and better equipped to answer the questions at issue. Because judicial substitution is incompatible with deference, reviewing courts must carefully evaluate the challenges raised by an applicant to ensure they go to the reasonableness of the administrative decision.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3740,7 +3740,7 @@ "text": "Unsurprisingly, applicants rarely present challenges to an administrative decision as explicit invitations for courts to substitute their opinions for those of administrative actors. Courts, therefore, must carefully probe challenges to administrative decisions to assess whether they amount, in substance, to a mere difference of opinion with how the administrative decision-maker weighed or prioritized the various factors relevant to the decision-making process. Allegations of error may, on deeper examination, simply reflect a legitimate difference in approach by an administrative decision-maker. By rooting out and rejecting such challenges, courts respect the valuable and distinct perspective that administrative bodies bring to answering legal questions, flowing from the considerable expertise and field sensitivity they develop by administering their mandate and working within the intricacies of their statutory context on a daily basis. The understanding and insights of administrative actors enhance the decision-making process and may be more conducive to reaching a result “that promotes effective public policy and administration . . . than the limited knowledge, detachment, and modes of reasoning typically associated with courts of law” (National Corn Growers, at pp. 1336-37 (emphasis deleted), per Wilson J., concurring, citing J. M. Evans et al., Administrative Law: Cases, Text, and Materials (3rd ed. 1989), at p. 414).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3758,7 +3758,7 @@ "text": "When resolving challenges to an administrative decision, courts must also consider the materiality of any alleged errors in the decision-maker’s reasoning. Under reasonableness review, an error is not necessarily sufficient to justify quashing a decision. Inevitably, the weight of an error will depend on the extent to which it affects the decision. An error that is peripheral to the administrative decision-maker’s reasoning process, or overcome by more compelling points advanced in support of the result, does not provide fertile ground for judicial review. Ultimately, the role of the reviewing court is to examine the decision as a whole to determine whether it is reasonable (Dunsmuir, at para. 47; Khosa, at para. 59). Considering the materiality of any impugned errors is a natural part of this exercise, and of reading administrative reasons “together with the outcome” (Newfoundland Nurses, at para. 14).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3776,7 +3776,7 @@ "text": "Review of the decision as a whole is especially vital when an applicant alleges that an administrative decision contains material omissions. Significantly, and as this Court has frequently emphasized, administrative decision-makers are not required to consider and comment upon every issue raised by the parties in their reasons (Construction Labour Relations v. Driver Iron Inc., [2012] 3 S.C.R. 405, at para. 3; Newfoundland Nurses, at para. 16, citing Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association, [1975] 1 S.C.R. 382, at p. 391). Further, a reviewing court is not restricted to the four corners of the written reasons delivered by the decision-maker and should, if faced with a gap in the reasons, look to the record to see if it sheds light on the decision (Williams Lake, at para. 37; Delta Air Lines Inc. v. Lukács, [2018] 1 S.C.R. 6, at para. 23; Newfoundland Nurses, at para. 15; Alberta Teachers’ Association, at paras. 53 and 56).\n\nThe use of the record and other context to supplement a decision-maker’s reasons has been the subject of some academic discussion (see, for example, Mullan, at pp. 69-74). We support a flexible approach to supplementing reasons, which is consistent with the flexible approach used to determine whether administrative reasons must be provided to begin with and sensitive to the “day-to-day realities of administrative agencies” (Baker, at para. 44), which may not be conducive to the production of “archival” reasons associated with court judgments (para. 40, citing Roderick A. Macdonald and David Lametti, “Reasons for Decision in Administrative Law” (1990), 3 C.J.A.L.P. 123).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3794,7 +3794,7 @@ "text": "Some materials that may help bridge gaps in a reviewing court’s understanding of an administrative decision include: the record of any formal proceedings as well as the materials before the decision-maker, past decisions of the administrative body, and policies or guidelines developed to guide the type of decision under review (see Matthew Lewans, “Renovating Judicial Review” (2017), 68 U.N.B.L.J. 109, at pp. 137-38). Reviewing these materials may assist a court in understanding, “by inference”, why an administrative decision-maker reached a particular outcome (Baker, at para. 44; see also Williams Lake, at para. 37; Mills v. Workplace Safety and Insurance Appeals Tribunal (Ont.), 2008 ONCA 436, 237 O.A.C. 71, at paras. 38-39). It may reveal further confirmatory context for a line of reasoning employed by the decision-maker — by showing, for example, that the decision-maker’s understanding of the purpose of its statutory mandate finds support in the provision’s legislative history (Celgene Corp. v. Canada (Attorney General), [2011] 1 S.C.R. 3, at paras. 25-29). Reviewing the record can also yield responses to the specific challenges raised by an applicant on judicial review, responses that are “consistent with the process of reasoning” applied by the administrative decision-maker (Igloo Vikski, at para. 45). In these ways, reviewing courts may legitimately supplement written reasons without “supplant[ing] the analysis of the administrative body” (Lukács, at para. 24).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3812,7 +3812,7 @@ "text": "The “adequacy” of reasons, in other words, is not “a stand-alone basis for quashing a decision” (Newfoundland Nurses, at para. 14). As this Court has repeatedly confirmed, reasons must instead “be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes” (Newfoundland Nurses, at para. 14; Halifax (Regional Municipality) v. Canada (Public Works and Government Services), [2012] 2 S.C.R. 108, at para. 44; Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 52; Williams Lake, at para. 141, per Rowe J., dissenting, but not on this point). This approach puts substance over form in situations where the basis for a decision by a specialized administrative actor is evident on the record, but not clearly expressed in written reasons. Quashing decisions in such circumstances defeats the purpose of deference and thwarts access to justice by wasting administrative and judicial resources.\n\nIn our view, therefore, if an applicant claims that an administrative decision-maker failed to address a relevant factor in reaching a decision, the reviewing court must consider the submissions and record before the decision-maker, and the materiality of any such omission to the decision rendered. An administrative decision-maker’s failure, for example, to refer to a particular statutory provision or the full factual record before it does not automatically entitle a reviewing court to conduct a de novo assessment of the decision under review. The inquiry must remain focussed on whether the applicant has satisfied the burden of showing that the omission renders the decision reached unreasonable.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3830,7 +3830,7 @@ "text": "We acknowledge that respecting the line between reasonableness and correctness review has posed a particular challenge for judges when reviewing interpretation by administrative decision-makers of their statutory mandates. Judges routinely interpret statutes and have developed a template for how to scrutinize words in that context. But the same deferential approach we have outlined above must apply with equal force to statutory interpretation cases. When reviewing an administrative decision involving statutory interpretation, a court should not assess the decision by determining what, in its own view, would be a reasonable interpretation. Such an approach “imperils deference” (Paul Daly, “Unreasonable Interpretations of Law” (2014), 66 S.C.L.R. (2d) 233, at p. 250).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3848,7 +3848,7 @@ "text": "We agree with Justice Evans that “once [a] court embarks on its own interpretation of the statute to determine the reasonableness of the tribunal’s decision, there seems often to be little room for deference” (Evans, “Triumph of Reasonableness: But How Much Does It Really Matter?”, at p. 109; see also Mason, at para. 34; Dyzenhaus, “Dignity in Administrative Law: Judicial Deference in a Culture of Justification”, at p. 108; Daly, “Unreasonable Interpretations of Law”, at pp. 254-55). We add that a de novo interpretation of a statute, conducted as a prelude to “deferential” review, necessarily omits a vital piece of the interpretive puzzle: the perspective of the front-line, specialized administrative body that routinely applies the statutory scheme in question (Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, at p. 304; Paul Daly, “Deference on Questions of Law” (2011), 74 Mod. L. Rev. 694). By placing that perspective at the heart of the judicial review inquiry, courts display respect for administrative specialization and expertise, and for the legislative choice to delegate certain questions to non-judicial bodies.\n\nConversely, by imposing their own interpretation of a statutory provision, courts undermine legislative intent to confide a mandate to the decision-maker. Applying a statute will almost always require some interpretation, making the interpretive mandate of administrative decision-makers inherent to their legislative mandate. The decision-maker who applies the statute has primary responsibility for interpreting the provisions in order to carry out their mandate effectively.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3866,7 +3866,7 @@ "text": "Administrative decision-makers performing statutory interpretation should therefore be permitted to be guided by their expertise and knowledge of the practical realities of their administrative regime. In many cases, the “ordinary meaning” of a word or term makes no sense in a specialized context. And in some settings, law and policy are so inextricably at play that they give the words of a statute a meaning unique to a particular specialized context (National Corn Growers, at p. 1336, per Wilson J., concurring; Domtar Inc., at p. 800). Further, not only are statutory provisions sometimes capable of bearing more than one reasonable interpretation, they are sometimes drafted in general terms or with “purposeful ambiguity” in order to permit adaptation to future, unknown circumstances (see Felix Frankfurter, “Some Reflections on the Reading of Statutes” (1947), 47 Colum. L. Rev. 527, at p. 528). These considerations make it all the more compelling that reviewing courts avoid imposing judicial norms on administrative decision-makers or maintaining a dogmatic insistence on formalism. Where a decision-maker can explain its decision adequately, that decision should be upheld (Daly, “Unreasonable Interpretations of Law”, at pp. 233-34, 250 and 254-55).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3884,7 +3884,7 @@ "text": "Justice Brown’s reasons in Igloo Vikski provide a useful illustration of a properly deferential approach to statutory interpretation. That case involved an interpretation of the Customs Tariff , S.C. 1997, c. 36 , as it applies to hockey goaltender gloves. The Canada Border Services Agency had classified the gloves as “[g]loves, mittens [or] mitts”. Igloo Vikski argued they should have been classified as sporting equipment. The Canadian International Trade Tribunal (“CITT”) confirmed the initial classification. The Federal Court of Appeal reversed the decision.\n\nAcknowledging that the “specific expertise” of the CITT gave it the upper hand over a reviewing court with respect to certain questions of law, Justice Brown determined that the standard of review was reasonableness. Writing for seven other members of the Court, he carefully reviewed the reasons of the CITT and how it had engaged with Igloo Vikski’s arguments before turning to the errors alleged by Igloo Vikski and the Federal Court of Appeal. Conceding that the CITT reasons lacked “perfect clarity”, Justice Brown nevertheless concluded that the Tribunal’s interpretation was reasonable. While he agreed with Igloo Vikski that an alternate interpretation to that given by the CITT was available, the inclusive language of the applicable statute was broad enough to accommodate the CITT’s reasonable interpretation. By beginning with the reasons offered for the interpretation and turning to the challenges mounted against it in light of the surrounding context, Igloo Vikski provides an excellent example of respectful and properly deferential judicial review.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3902,7 +3902,7 @@ "text": "We conclude our discussion of reasonableness review by addressing cases where reasons are neither required nor available for judicial review. In these circumstances, a reviewing court should remain focussed on whether the decision has been shown to be unreasonable. The reasonableness of the decision may be justified by past decisions of the administrative body (see Edmonton East, at paras. 38 and 44-46; Alberta Teachers’ Association, at paras. 56-64). In other circumstances, reviewing courts may have to assess the reasonableness of the outcome in light of the procedural context surrounding the decision (see Law Society of British Columbia v. Trinity Western University, [2018] 2 S.C.R. 293, at paras. 51-56; Edmonton East, at paras. 48‑60; Catalyst Paper Corp., at paras. 32-36). In all cases, the question remains whether the challenging party has demonstrated that a decision is unreasonable.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3920,7 +3920,7 @@ "text": "In sum, reasonableness review is based on deference to administrative decision-makers and to the legislative intention to confide in them a mandate. Deference must inform the attitude of a reviewing court and the nature of its analysis: the court does not ask how it would have resolved the issue before the administrative decision-maker but instead evaluates whether the decision-maker acted reasonably. The reviewing court starts with the reasons offered for the administrative decision, read in light of the surrounding context and based on the grounds advanced to challenge the reasonableness of the decision. The reviewing court must remain focussed on the reasonableness of the decision viewed as a whole, in light of the record, and with attention to the materiality of any alleged errors to the decision-maker’s reasoning process. By properly conducting reasonableness review, judges provide careful and meaningful oversight of the administrative justice system while respecting its legitimacy and the perspectives of its front-line, specialized decision-makers. Application to Mr. Vavilov\n\nAlexander Vavilov challenges the Registrar of Citizenship’s decision to cancel his citizenship certificate. The Registrar concluded that Mr. Vavilov was not a Canadian citizen, and therefore not entitled to a certificate of Canadian citizenship because, although he was born in Canada, his parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2) (a) of the Citizenship Act , R.S.C. 1985, c. C-29 .\n\nThe first issue is the applicable standard of review. We agree with the majority that reasonableness applies.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3938,7 +3938,7 @@ "text": "The second issue is whether the Registrar was reasonable in concluding that the exception to Canadian citizenship in s. 3(2)(a) applies not only to parents who enjoy diplomatic privileges and immunities, but also to intelligence agents of a foreign government. The onus is therefore on Mr. Vavilov to satisfy the reviewing court that the decision was unreasonable. In our view, he has met that onus.\n\nMr. Vavilov was born in Canada in 1994. His Russian parents, Elena Vavilova and Andrey Bezrukov, entered Canada at some point prior to his birth, assumed the identities of two deceased Canadians and fraudulently obtained Canadian passports. After leaving Canada to live in France, Mr. Vavilov and his family moved to the United States. While in the United States, Mr. Vavilov’s parents became American citizens under their assumed Canadian identities. Mr. Vavilov and his older brother also obtained American citizenship.\n\nIn June 2010, agents of the United States Federal Bureau of Investigation arrested Mr. Vavilov’s parents and charged them with conspiracy to act as unregistered agents of a foreign government and to commit money laundering. Mr. Vavilov’s parents pleaded guilty to the conspiracy charges in July 2010 and were returned to Russia in a spy swap. Around the same time, Mr. Vavilov and his brother travelled to Russia. The American government subsequently revoked Mr. Vavilov’s passport and citizenship. In December 2010, he was issued a Russian passport and birth certificate.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3956,7 +3956,7 @@ "text": "From 2010 to 2013, Mr. Vavilov repeatedly sought a Canadian passport. In December 2011, he obtained an amended Ontario birth certificate, showing his parents’ true names and places of birth. Using this birth certificate, Mr. Vavilov applied for and received a certificate of Canadian citizenship in January 2013. Relying on these certificates, Mr. Vavilov applied for an extension of his Canadian passport in early 2013. On July 18, 2013, the Registrar wrote to Mr. Vavilov, informing him that there was reason to believe the citizenship certificate had been erroneously issued and asking him for additional information.\n\nOn April 22, 2014, Mr. Vavilov provided extensive written submissions to the Registrar. He argued that the narrow exception set out in s. 3(2) of the Act does not apply to him. Because he was born in Canada, he is entitled to Canadian citizenship. Mr. Vavilov also argued that the Registrar had failed to respect the requirements of procedural fairness.\n\nThe Registrar wrote to Mr. Vavilov on August 15, 2014, cancelling his certificate of Canadian citizenship. In her view, because Mr. Vavilov met the two statutory restrictions in s. 3(2) of the Act, he was not a Canadian citizen. First, when Mr. Vavilov was born in Canada, neither of his parents were Canadian citizens or lawfully admitted to Canada for permanent residence. Second, as unofficial agents working for Russia’s Foreign Intelligence Service, Mr. Vavilov’s parents were “other representative[s] or employee[s] in Canada of a foreign government” within the meaning of s. 3(2)(a).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3974,7 +3974,7 @@ "text": "The Federal Court ([2016] 2 F.C.R. 39) dismissed Mr. Vavilov’s application for judicial review. It found that the Registrar had satisfied the requirements of procedural fairness and, applying a correctness standard, determined that the Registrar’s interpretation of s. 3(2)(a) was correct. The Federal Court then reviewed the application of s. 3(2)(a) on a reasonableness standard and concluded that the Registrar had reasonably determined that Mr. Vavilov’s parents were working in Canada as undercover agents of the Russian government at the time of his birth.\n\nThe Federal Court of Appeal ([2018] 3 F.C.R. 75) allowed the appeal and quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate. Writing for the majority, Stratas J.A. agreed that the requirements of procedural fairness were met but held that the Registrar’s interpretation of s. 3(2)(a) was unreasonable. In his view, only those who enjoy diplomatic privileges and immunities fall within the exception to citizenship found in s. 3(2)(a). Justice Stratas reached this conclusion after considering the context and purpose of the provision, its legislative history and international law principles related to citizenship and diplomatic privileges and immunities.\n\nAs a general rule, administrative decisions are to be judicially reviewed for reasonableness. None of the correctness exceptions apply to the Registrar’s interpretation of the Act in this case. As such, the standard of review is reasonableness.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -3992,7 +3992,7 @@ "text": "The following provisions of the Citizenship Act are relevant to this appeal: Persons who are citizens 3 (1) Subject to this Act, a person is a citizen if (a) the person was born in Canada after February 14, 1977; . . . Not applicable to children of foreign diplomats, etc. (2) Paragraph (1)(a) does not apply to a person if, at the time of his birth, neither of his parents was a citizen or lawfully admitted to Canada for permanent residence and either of his parents was (a) a diplomatic or consular officer or other representative or employee in Canada of a foreign government; (b) an employee in the service of a person referred to in paragraph (a); or (c) an officer or employee in Canada of a specialized agency of the United Nations or an officer or employee in Canada of any other international organization to whom there are granted, by or under any Act of Parliament, diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a). The general rule embodied in s. 3(1)(a) of the Act is that persons born in Canada are Canadian citizens. Section 3(2) sets out an exception to this rule. As such, if s. 3(2) applies to Mr. Vavilov, he was never a Canadian citizen.\n\nThe specific issue in this case is whether the Registrar’s interpretation of the statutory exception to citizenship was reasonable. Reasonableness review entails deference to the decision-maker, and we begin our analysis by examining the reasons offered by the Registrar in light of the context and the grounds argued.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4010,7 +4010,7 @@ "text": "In this case, the Registrar’s letter to Mr. Vavilov summarized the key points underlying her decision. In concluding that Mr. Vavilov was not entitled to Canadian citizenship, the Registrar adopted the recommendations of an analyst employed by Citizenship and Immigration Canada. As such, the analyst’s report properly forms part of the reasons supporting the Registrar’s decision.\n\nThe analyst’s report sought to answer the question of whether Mr. Vavilov was erroneously issued a certificate of Canadian citizenship. The report identifies the key question in this case as being whether either of Mr. Vavilov’s parents was a “representative” or “employee” of a foreign government within the meaning of s. 3(2)(a). Much of the report relates to matters not disputed in this appeal, including the legal status of Mr. Vavilov’s parents in Canada and their employment as Russian intelligence agents.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4028,7 +4028,7 @@ "text": "The analyst began her analysis with the text of s. 3(2)(a). In concluding that the provision operates to deny Mr. Vavilov Canadian citizenship, she set out two textual arguments. First, she compared the current version of s. 3(2)(a) to an earlier iteration of the exception found in s. 5(3) of the Canadian Citizenship Act, R.S.C. 1970, c. C-19: Not applicable to children of foreign diplomats, etc. (3) Subsection (1) does not apply to a person if, at the time of that person’s birth, his responsible parent (a) is an alien who has not been lawfully admitted to Canada for permanent residence; and (b) is (i) a foreign diplomatic or consular officer or a representative of a foreign government accredited to Her Majesty, (ii) an employee of a foreign government attached to or in the service of a foreign diplomatic mission or consulate in Canada, or (iii) an employee in the service of a person referred to in subparagraph (i).\n\nThe analyst stated that the removal of references to official accreditation or a diplomatic mission indicate that the previous exception was narrower than s. 3(2)(a). She then pointed out that the definition of “diplomatic or consular officer” in s. 35(1) of the Interpretation Act , R.S.C. 1985, c. I-21 , clearly associates these individuals with diplomatic positions. Because the current version of s. 3(2)(a) does not link “other representative or employee in Canada of a foreign government” to a diplomatic mission, the analyst determined “it is reasonable to maintain that this provision intends to encompass individuals not included in the definition of ‘diplomatic and consular staff.’” Finally, the analyst stated that the phrase “other representative or employee in Canada of a foreign government” has not been previously interpreted by a court.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4046,7 +4046,7 @@ "text": "Beyond the analyst’s report, there is little in the record to supplement the Registrar’s reasons. There is no evidence about whether the Registrar has previously applied this provision to individuals like Mr. Vavilov, whose parents did not enjoy diplomatic privileges and immunities. Neither does there appear to be any internal policy, guideline or legal opinion to guide the Registrar in making these types of decisions.\n\nIn challenging the Registrar’s decision, Mr. Vavilov bears the onus of demonstrating why it is not reasonable. Before this Court, Mr. Vavilov submitted that the analyst focussed solely on the text of the exception to citizenship. In his view, had the broader objectives of s. 3(2)(a) been considered, the analyst would have concluded that “other representative” or “employee” only applies to individuals who benefit from diplomatic privileges and immunities.\n\nIn his submissions before the Registrar, Mr. Vavilov offered three reasons why the text of s. 3(2) must be read against the backdrop of Canadian and international law relating to the roles and functions of diplomats.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4064,7 +4064,7 @@ "text": "First, Mr. Vavilov explained that s. 3(2)(a) should be read in conjunction with the Foreign Missions and International Organizations Act , S.C. 1991, c. 41 (“FMIOA ”). This statute incorporates into Canadian law aspects of the Vienna Convention on Diplomatic Relations, Can. T.S. 1966 No. 29, Sched. I to the FMIOA , and the Vienna Convention on Consular Relations, Can. T.S. 1974 No. 25, Sched. II to the FMIOA , which deal with diplomatic privileges and immunities. He submitted that s. 3(2) denies citizenship to children of diplomats because diplomatic privileges and immunities, including immunity from criminal prosecution and civil liability, are inconsistent with the duties and responsibilities of a citizen. Because Mr. Vavilov’s parents did not enjoy such privileges and immunities, there would be no purpose in excluding their children born in Canada from becoming Canadian citizens.\n\nSecond, Mr. Vavilov provided the Registrar with Hansard committee meeting minutes such as the comments of the Hon. J. Hugh Faulkner, Secretary of State, when introducing the amendments to s. 3(2), who explained that the provision had been redrafted to narrow the exception to citizenship.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4082,7 +4082,7 @@ "text": "Third, Mr. Vavilov cited case law, arguing that: (i) the exception to citizenship should be narrowly construed because it takes away substantive rights (Brossard (Town) v. Quebec Commission des droits de la personne, [1988] 2 S.C.R. 279, at p. 307); (ii) s. 3(2)(a) must be interpreted functionally and purposively (Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at para. 8); and (iii) because Mr. Vavilov’s parents were not immune from criminal or civil proceedings, they fall outside the scope of s. 3(2) (Greco v. Holy See (State of the Vatican City), [1999] O.J. No. 2467 (QL) (S.C.J.); R. v. Bonadie (1996), 109 C.C.C. (3d) 356 (Ont. C.J.); Al-Ghamdi v. Canada (Minister of Foreign Affairs and International Trade) (2007), 64 Imm. L.R. (3d) 67 (F.C.)).\n\nThe Federal Court’s decision in Al-Ghamdi, a case which challenged the constitutionality of s. 3(2)(a), was particularly relevant. In that case, Shore J. wrote that s. 3(2)(a) only applies to the “children of individuals with diplomatic status” (paras. 5 and 65). Justice Shore also stated that “[i]t is precisely because of the vast array of privileges accorded to diplomats and their families, which are by their very nature inconsistent with the obligations of citizenship, that a person who enjoys diplomatic status cannot acquire citizenship” (para. 63).", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4100,7 +4100,7 @@ "text": "The Registrar’s reasons failed to respond to Mr. Vavilov’s extensive and compelling submissions about the objectives of s. 3(2)(a). It appears that the analyst misunderstood Mr. Vavilov’s arguments on this point. In discussing the scope of s. 3(2), she wrote, “[c]ounsel argues that CIC [Citizenship and Immigration Canada] cannot invoke subsection 3(2) because CIC has not requested or obtained verification with the Foreign Affairs Protocol to prove that [Mr. Vavilov’s parents] held diplomatic or consular status with the Russian Federation while they resided in Canada.” It thus appears that the analyst did not recognize that Mr. Vavilov’s argument was more fundamental in nature — namely, that the objectives of s. 3(2) require the terms “other representative” and “employee” to be read narrowly. During discovery, in fact, the analyst acknowledged that her research did not reveal a policy purpose behind s. 3(2)(a) or why the phrase “other representative or employee” was included in the Act. It also appears that the analyst did not understand the potential relevance of the Al-Ghamdi decision, since her report stated that “[t]he jurisprudence that does exist only relates to individuals whose parents maintained diplomatic status in Canada at the time of their birth.”", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4118,7 +4118,7 @@ "text": "The Registrar, in the end, interpreted s. 3(2)(a) broadly, based on the analyst’s purely textual assessment of the provision, including a comparison with the text of the previous version. This reading of “other representative or employee” was only reasonable if the text is read in isolation from its objective. Nothing in the history of this provision indicates that Parliament intended to widen its scope. Rather, as Mr. Vavilov points out, the modifications made to s. 3(2) in 1976 appear to mirror those embodied in the Vienna Convention on Diplomatic Relations and the Vienna Convention on Consular Relations, which were incorporated into Canadian law in 1977. The judicial treatment of this provision, in particular the statements in Al-Ghamdi about the narrow scope of s. 3(2)(a) and the inconsistency between diplomatic privileges and immunities and citizenship, also points to the need for a narrow interpretation of the exception to citizenship.\n\nIn addition, as noted by the majority of the Federal Court of Appeal, the text of s. 3(2)(c) can be seen as undermining the Registrar’s interpretation. That provision denies citizenship to children born to individuals who enjoy “diplomatic privileges and immunities certified by the Minister of Foreign Affairs to be equivalent to those granted to a person or persons referred to in paragraph (a)”. As Stratas J.A. noted, this language suggests that s. 3(2)(a) covers only those “employee[s] in Canada of a foreign government” who have diplomatic privileges and immunities.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -4136,7 +4136,7 @@ "text": "By ignoring the objectives of the provision, the Registrar rendered an unreasonable decision. In particular, the arguments supporting a reading of s. 3(2) that is restricted to those who have diplomatic privileges and immunities, likely would have changed the outcome in this case.\n\nMr. Vavilov has satisfied us that the Registrar’s decision is unreasonable. As a result, the Court of Appeal properly quashed the Registrar’s decision to cancel Mr. Vavilov’s citizenship certificate, and he is thus entitled to a certificate of Canadian citizenship.\n\nWe would therefore dismiss the appeal with costs to Mr. Vavilov throughout. Appeal dismissed with costs throughout.", "current_to": "2019-12-19", "last_amended": "", - "history": "Also reported: [2019] 4 SCR 653", + "history": "[2019] 4 SCR 653", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/18078/index.do" }, { @@ -5990,7 +5990,7 @@ "text": "Côté J. — Canada’s Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), recognizes that there are important social, cultural and economic benefits to immigration. It also recognizes that successful integration of permanent residents involves mutual obligations for those new immigrants and for Canadian society.\n\nThis appeal concerns the obligation of permanent residents to avoid “serious criminality”, as set out in s. 36(1) (a) of the IRPA . This obligation is breached when a permanent resident is convicted of a federal offence punishable by a maximum term of imprisonment of at least 10 years, or of a federal offence for which a term of imprisonment of more than 6 months has been imposed.\n\nThe appellant, Thanh Tam Tran, was convicted of a federal offence and received a 12-month conditional sentence. At issue in this appeal is whether a conditional sentence consists of a “term of imprisonment” for the purposes of s. 36(1)(a) and whether, when the maximum sentence for an offence has changed over time, the “maximum term of imprisonment” referred to at s. 36(1) should be taken to be the maximum sentence that could have been imposed at the time of the commission of the offence, of the conviction, of sentencing or of the determination as to the permanent resident’s admissibility to Canada.\n\nFor the reasons that follow, I would allow the appeal. I. Background", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6008,7 +6008,7 @@ "text": "Section 36(1) (a) of the IRPA provides the basis for finding a permanent resident inadmissible to Canada on grounds of “serious criminality”: 36 (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; Inadmissibility can lead to loss of status and removal from Canada.\n\nIf a Canada Border Services Agency (“CBSA”) officer is of the opinion that a permanent resident is inadmissible, that officer may prepare a report setting out the relevant facts and transmit that report to the Minister of Public Safety and Emergency Preparedness (“Minister”) (IRPA , s. 44(1) ). If the Minister is of the opinion that the report is well founded, the Minister may refer the report to the Immigration Division of the Immigration and Refugee Board (“Immigration Division”) for an admissibility hearing (s. 44(2)). However, even if he is of the opinion that the report is well founded, the Minister retains some discretion not to refer it to the Immigration Division.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6026,7 +6026,7 @@ "text": "If the Minister does refer the report to the Immigration Division, an admissibility hearing is held for the permanent resident, and the Immigration Division must either recognize that person’s right to enter Canada (IRPA , s. 45 (a)), authorize him or her to enter Canada for further examination (s. 45(c)), or make a removal order against that person (s. 45(d)). If a removal order is made, that person’s permanent resident status is lost (IRPA , s. 46(1) (c)). Although a right to appeal to the Immigration Appeal Division exists against a decision to make a removal order against a permanent resident (IRPA , s. 63(3) ), there is no right to appeal by a permanent resident who has been found inadmissible on grounds of serious criminality if the finding of inadmissibility was “with respect to a crime that was punished in Canada by a term of imprisonment of at least six months” (IRPA , s. 64(2) ).\n\nThis appeal concerns the judicial review of a decision by the Minister to refer a report concerning Mr. Tran’s admissibility to the Immigration Division.\n\nMr. Tran is a citizen of Vietnam. In 1989, he acquired permanent resident status in Canada. In March 2011, he was involved in a marihuana grow operation containing approximately 915 plants and was charged with production of a controlled substance, contrary to s. 7(1) of the Controlled Drugs and Substances Act , S.C. 1996, c. 19 (“CDSA ”). At the time of the commission of the offence, the maximum penalty if convicted was seven years of imprisonment (s. 7(2)(b)).", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6044,7 +6044,7 @@ "text": "On November 6, 2012, legislation came into effect (Safe Streets and Communities Act, S.C. 2012, c. 1, s. 41) increasing the maximum sentence for this offence to 14 years of imprisonment and providing for a new minimum sentence of 2 years of imprisonment if the number of plants produced was more than 500 (CDSA , s. 7(2) (b)(v)).\n\nOn November 29, 2012, Mr. Tran was convicted of the charge against him. On January 18, 2013, he received a 12-month conditional sentence of imprisonment, to be served in the community. II. Decisional History A. Administrative Decisions\n\nOn July 26, 2013, a CBSA officer prepared a report stating that Mr. Tran was inadmissible to Canada under s. 36(1) (a) of the IRPA . A delegate of the Minister referred Mr. Tran’s case to the Immigration Division for an admissibility hearing. This referral was withdrawn on September 10, 2013, in view of legislative changes to appeal rights under s. 64(2) of the IRPA . Mr. Tran was given an opportunity to make additional submissions as to why a removal order should not be sought against him.\n\nOn October 4, 2013, Mr. Tran provided written submissions in which he argued that he did not fall within the purview of s. 36 because: (1) the conditional sentence order made against him was not a “term of imprisonment”, and therefore a “term of imprisonment of more than six months” had not been imposed; and (2) the CDSA amendments raising the maximum sentence for the offence for which he was convicted were not retroactively applicable to him, and therefore the offence, at the time he committed it, was not “punishable by a maximum term of imprisonment of at least 10 years”. Mr. Tran also made submissions on various discretionary factors in support of his position that his case did not warrant referral to the Immigration Division.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6062,7 +6062,7 @@ "text": "On October 7, 2013, a second CBSA officer submitted another report (“Report”) regarding Mr. Tran to a delegate of the Minister. The Report states, in part: I recommend that this report be referred to an admissibility hearing and a deportation order be issued. . . . I have reviewed counsel’s submissions carefully and thoroughly, and given thought to each relevant point. Many are legal arguments that do not fall into the scope of my duties in this matter. In looking at my responsibility under the Act, I am guided by CIC Enforcement Manual ENF 6, which states I should consider the following non-exhaustive list of factors. I address each of them below, with consideration to additional and relevant points raised by counsel. [Emphasis added.] (A.R., vol. I, at p. 1) The Report then canvasses conditions in Mr. Tran’s home country of Vietnam, his degree of establishment in Canada, and the best interests of his children. Notably, the Report lists a series of arrests and charges without conviction, and a conviction for impaired driving, which are cited in support of a conclusion that Mr. Tran tends to get arrested every couple of years. By failing to acknowledge any of his past problems, particularly his very recent conviction, it is my opinion that [Mr. Tran] is not accepting responsibility for his actions. Based on the little information before me, I can only assume he will reoffend because he has done so in the past and because he has not demonstrated any inclination to take responsibility for anything beyond what he thinks immigration officials are aware of. . . . . . . Based on all of the above information, and in consideration of the submissions made by counsel, it is my opinion that this report should be referred to a hearing. [Mr.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6080,7 +6080,7 @@ "text": "Tran] has been involved in a serious criminal offence. The evidence provided is that he has been involved in criminal activity in the past and that he is not taking full responsibility for his actions. The mitigating factors (establishment, family, hardship in Vietnam, etc.) are overshadowed by the seriousness of the offence, [Mr. Tran]’s conduct in society, and the lack of any indication his behaviour will improve. (A.R., vol. I, at p. 3)\n\nOn October 10, 2013, the Minister’s delegate endorsed the Report and referred the matter for an admissibility hearing before the Immigration Division. Mr. Tran then applied for judicial review of the delegate’s decision. B. Judicial Review in the Federal Court, 2014 FC 1040, 31 Imm. L.R. (4th) 160", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6098,7 +6098,7 @@ "text": "Justice O’Reilly found the decision to be unreasonable. He allowed Mr. Tran’s application for judicial review and ordered that another officer consider the question of Mr. Tran’s inadmissibility. The judge found that whether a conditional sentence is a “term of imprisonment” varies according to the statutory context; that conditional sentences are meant as an alternative to incarceration for less serious offences; and that Mr. Tran’s conditional sentence was not a “term of imprisonment” under the IRPA . Ergo, Mr. Tran had not been sentenced to a “term of imprisonment of more than six months”. On the maximum term of imprisonment question, O’Reilly J. found that s. 36(1)(a) referred to the maximum punishment available at the time of conviction (para. 20): The maximum sentence at the time of his conviction was 7 years. While the maximum sentence was subsequently raised to 14 years, Mr. Tran was not punishable by a sentence of that duration. Therefore, the offence of which he was convicted did not come within s. 36(1)(a), and the officer’s decision to the contrary was unreasonable. The judge also found the officer’s reliance on unproven allegations of criminal activity to be unreasonable.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6116,7 +6116,7 @@ "text": "Justice O’Reilly certified two questions of general importance, thus permitting an appeal to the Federal Court of Appeal under s. 74 (d) of the IRPA : 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code [R.S.C. 1985, c. C-46 ] a “term of imprisonment” under s. 36(1) (a) of the IRPA ? 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? (2015 FC 899) C. Federal Court of Appeal, 2015 FCA 237, [2016] 2 F.C.R. 459\n\nJustice Gauthier, for a unanimous Federal Court of Appeal, allowed the Minister’s appeal. She found that even if the reviewing judge’s interpretation of s. 36(1)(a) was correct, he had nevertheless failed to do what he was required to do under a reasonableness standard on judicial review: to assess whether the interpretation adopted by the administrative decision maker fell within the range of interpretations defensible on the law and facts.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6134,7 +6134,7 @@ "text": "Gauthier J.A. found that the interpretation of s. 36(1)(a) adopted by the Minister’s delegate was not unreasonable. Regarding the actual term of imprisonment imposed (the first certified question), she held that it was not unreasonable to construe a conditional sentence as a “term of imprisonment” under s. 36(1)(a). She added that to say that a conditional sentence is more lenient than similar terms of incarceration does not mean that Parliament does not nevertheless consider the offence in question serious enough to warrant inadmissibility. She noted that the parliamentary committee debates about lowering the threshold of the term of imprisonment beyond which there is no right to appeal inadmissibility findings to the Immigration Appeal Division (IRPA , s. 64(2) ) included three proposals to exclude conditional sentences, each of which was defeated. She explained that if Parliament considers a conditional sentence of at least six months to be sufficiently serious to warrant the loss of appeal rights, it was not unreasonable for the Minister’s delegate to interpret a conditional sentence as a “term of imprisonment” under s. 36(1)(a).", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6152,7 +6152,7 @@ "text": "With respect to “punishable by a maximum term of imprisonment of at least 10 years”, Gauthier J.A. found that “punishable” refers to the offence under the Act of Parliament and not to what could be imposed on any particular offender. She was of the view that the context of s. 36(1)(a) supports a conclusion that the test is objective rather than subjective. She found that it was not unreasonable to conclude that the relevant point in time is when admissibility is being assessed, since admissibility should be assessed against Canada’s prevailing views of the seriousness of the offence in question. She was also of the view that s. 11( i ) of the Canadian Charter of Rights and Freedoms did not apply because proceedings before the Minister’s delegate are neither criminal nor penal. III. Preliminary Matters\n\nPrior to tackling the statutory interpretation questions at the heart of this appeal, I will address two preliminary matters. First, to be clear, the decision under review is that of the Minister’s delegate, taken pursuant to s. 44(2) of the IRPA , to refer the matter to the Immigration Division for an admissibility hearing. While the Minister’s delegate merely adopted the Report ― and that Report is all that is available in support of the decisions taken at the s. 44(1) and s. 44(2) stages ― it is nevertheless the Minister’s delegate’s decision that was under review and not that of the officer.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6170,7 +6170,7 @@ "text": "Second, while courts have the discretion to hear an application for judicial review prior to the completion of the administrative process and the exhaustion of appeal mechanisms, they should exercise restraint before doing so (Halifax (Regional Municipality) v. Nova Scotia (Human Rights Commission), 2012 SCC 10, [2012] 1 S.C.R. 364, at paras. 35-36; D. J. M. Brown and J. M. Evans, with the assistance of D. Fairlie, Judicial Review of Administrative Action in Canada (loose-leaf), at topic 3:4100). In this case, the parties have not asked this Court to revisit the decisions of the courts below to hear the application, and I am of the view that this Court should respect those decisions. IV. Analysis\n\nThe modern principle of statutory interpretation is 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” (E. A. Driedger, Construction of Statutes (2nd ed. 1983), at p. 87). Applying this approach, I am of the view that, under either standard of review, the assumed interpretation of s. 36(1)(a) by the Minister’s delegate cannot stand. A. Conditional Sentences Are Not Included in “Term of Imprisonment”\n\nI cannot, on either standard of review, accept the interpretation that conditional sentences are captured in the meaning of “term of imprisonment”. Such an interpretation must be rejected for at least three reasons.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6188,7 +6188,7 @@ "text": "First, the purpose of s. 36(1)(a) is to define “serious criminality” for permanent residents convicted of an offence in Canada. It is clear from the wording of the provision that whether or not an imposed sentence can establish “serious criminality” depends on its length. Length is the gauge. It must be “more than six months”. However, the seriousness of criminality punished by a certain length of jail sentence is not the same as the seriousness of criminality punished by an equally long conditional sentence. In other words, length of the sentence alone is not an accurate yardstick with which to measure the seriousness of the criminality of the permanent resident.\n\nChief Justice Lamer explained in R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 44, that “a conditional sentence, even with stringent conditions, will usually be a more lenient sentence than a jail term of equivalent duration”. He elaborated as follows (at para. 52): A judge does not impose a fixed sentence of “x months” in the abstract, without having in mind where that sentence will be served. Furthermore, when a conditional sentence is chosen, its duration will depend on the type of conditions imposed. Therefore, the duration of the sentence should not be determined separately from the determination of its venue. [Citations omitted.]", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6206,7 +6206,7 @@ "text": "The dissymmetry between the length of jail terms and the length of conditional sentences was usefully illustrated by counsel for Mr. Tran. On the one hand, there are cases in which mitigating factors prompted courts to replace jail terms of less than six months with conditional sentences longer than six months (e.g. R. v. Shah, 2003 BCCA 294, 182 B.C.A.C. 142; R. v. Saundercook-Menard, 2008 ONCA 493; R. v. Chapman, 2007 YKSC 55; R. v. Jacobson (2006), 207 C.C.C. (3d) 270 (Ont. C.A.)). On the other hand, there are cases in which aggravating factors led courts to replace conditional sentences longer than six months with jail terms shorter than six months (e.g. R. v. Keller, 2009 ABCA 418, 469 A.R. 151; R. v. Sandhu, 2014 ONCJ 95; R. v. Kasakan, 2006 SKCA 14, [2006] 8 W.W.R. 23; R. v. Lebar, 2010 ONCA 220, 101 O.R. (3d) 263). Notably, in the case at bar, Mr. Tran asked the Court of Appeal for British Columbia to replace his 12-month conditional sentence with a custodial sentence of less than 6 months (A.F., at para. 18).", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6224,7 +6224,7 @@ "text": "Not only is length an unreliable indicator of “serious criminality” when comparing jail sentences to conditional sentences, but it may not even be a reliable measure across conditional sentences because of the disparate conditions attached to them. More fundamentally, conditional sentences generally indicate less “serious criminality” than jail terms. As Lamer C.J. said, a “conditional sentence is a meaningful alternative to incarceration for less serious and non-dangerous offenders” (Proulx, at para. 21; see also R. v. Knoblauch, 2000 SCC 58, [2000] 2 S.C.R. 780, at para. 102). Thus, interpreting “a term of imprisonment of more than six months” as including both prison sentences and conditional sentences undermines the efficacy of using length to evaluate the seriousness of criminality.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6242,7 +6242,7 @@ "text": "Second, the meaning of “term of imprisonment” varies according to the statutory context. In some instances, the word “imprisonment” is used in the Criminal Code to capture conditional sentences (R. v. Wu, 2003 SCC 73, [2003] 3 S.C.R. 530, at para. 25; Proulx, at para. 29). But that is not always the case. In R. v. Middleton, 2009 SCC 21, [2009] 1 S.C.R. 674, at para. 14, Justice Fish concluded that there is no consistent meaning for the word “imprisonment” in the Criminal Code : . . . “imprisonment” in the phrases “sentence of imprisonment” and “term of imprisonment” does not bear a uniform meaning for all purposes of the Criminal Code . In several instances, these terms necessarily contemplate incarceration. Nor is there a consistent meaning across other statutes. Critically, its meaning in ss. 36(1) (a) and 64 of the IRPA was interpreted by this Court in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539, at paras. 11 and 13, to mean “prison”: . . . the IRPA creates a new scheme whereby persons sentenced to more than six months in prison are inadmissible: IRPA , s. 36(1) (a). If they have been sentenced to a prison term of more than two years then they are denied a right to appeal their removal order: IRPA , s. 64 . Provisions allowing judicial review mitigate the finality of these provisions, as do appeals under humanitarian and compassionate grounds and pre-removal risk assessments. However, the Act is clear: a prison term of over six months will bar entry to Canada; a prison term of over two years bans an appeal. . . . In summary, the provisions of the IRPA and the Minister’s comments indicate that the purpose of enacting the IRPA , and in particular s.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6260,7 +6260,7 @@ "text": "64, was to efficiently remove criminals sentenced to prison terms over six months from the country. [Emphasis added.] While not necessarily determinative, this existing interpretation of “term of imprisonment” in the context of the IRPA fortifies my conclusion in this case.\n\nThe Minister says that, in recent amendments to ss. 50 (b) and 64(2) of the IRPA , the exclusion of conditional sentences from the meaning of “term of imprisonment” was explicitly rejected. I do not agree with this interpretation of legislative history. It is useful to note as a starting point that the six-month threshold originated in the Immigration Act, 1976, S.C. 1976-77, c. 52, s. 27(1)(d) ― before the introduction of conditional sentences as a sentencing option in Canada ― and was later kept in the IRPA in 2002. In 2013, the threshold for denial of appeal rights set out in s. 64(2) was reduced from a “term of imprisonment” of at least two years to a “term of imprisonment” of at least six months (S.C. 2013, c. 16, s. 24). The Minister points to committee debates surrounding those amendments ― debates in which proposals to exclude conditional sentences from counting toward the s. 64(2) threshold were rejected. Specifically, the Minister’s argument rests on the rejection of three proposals by the House of Commons and Senate committees tasked with examining amendments. However, since the proposed amendments addressed more than just conditional sentences[1] and had to do with changes to s. 64(2) rather than to s. 36(1)(a), I cannot draw any meaningful inferences from the rejection of those proposals.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6278,7 +6278,7 @@ "text": "Finally, my interpretation avoids absurd results. In Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, at para. 27, Justice Iacobucci explained the presumption that the legislature does not intend absurd consequences: It is a well established principle of statutory interpretation that the legislature does not intend to produce absurd consequences. According to Côté [P.-A. Côté, The Interpretation of Legislation in Canada (2nd ed. 1991)], an interpretation can be considered absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or with the object of the legislative enactment (at pp. 378-80). Sullivan echoes these comments noting that a label of absurdity can be attached to interpretations which defeat the purpose of a statute or render some aspect of it pointless or futile ([R. Sullivan, Driedger on the Construction of Statutes (3rd ed. 1994)], at p. 88).", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6296,7 +6296,7 @@ "text": "If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.\n\nIt would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.\n\nFor these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA cannot, by either standard of review, be understood to include conditional sentences. B. The Maximum Term Is Determined as of the Time of the Commission of the Offence", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6314,7 +6314,7 @@ "text": "Turning to the interpretation of “punishable by a maximum term”, in my view, a contextual reading of s. 36(1)(a) supports only one conclusion: the phrase “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence.\n\nSection 36(1)(a) begins with “having been convicted”, which sets the temporal marker at the time of conviction. As counsel for Mr. Tran underscored during oral argument, the fact of a conviction precedes the two disjunctive clauses: the maximum term and the actual term imposed. Both are rooted in the fact of having been convicted. It is at the moment of conviction that the two disjunctive clauses become operable, and it is with reference to that time that the clauses are to be understood.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6332,7 +6332,7 @@ "text": "By the time of Mr. Tran’s conviction (November 29, 2012) and sentencing (January 18, 2013), the maximum sentence for an offence under s. 7(1) of the CDSA had increased from imprisonment for 7 years to imprisonment for 14 years. However, in view of s. 11( i ) of the Charter , Mr. Tran, or anyone else in his position, could not receive a sentence greater than seven years. This is so because production of a controlled substance, contrary to s. 7(1) of the CDSA , is a criminal offence. Hence, sentences for convictions under that provision must not offend s. 11( i ) of the Charter which provides: 11. Any person charged with an offence has the right . . . (i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment. Accordingly, the maximum sentence Mr. Tran could have been sentenced to upon his conviction is limited by the maximum sentence available at the time of the commission of the offence. Mr. Tran was not punishable by a term of imprisonment of at least 10 years.\n\nThe Court of Appeal held that “punishable by a maximum term of imprisonment of at least 10 years” could be interpreted without reference to Mr. Tran or to a person in his position. I disagree. The criterion cannot simply be the abstract maximum penalty divorced from the actual “permanent resident . . . convicted” in a particular case. In my view, “punishable by a maximum term of imprisonment of at least 10 years” is to be understood as referring to the circumstances of the actual offender or of others in similar circumstances.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6350,7 +6350,7 @@ "text": "This interpretation aligns with the purpose of the IRPA , as outlined in s. 3: 3 (1) The objectives of this Act with respect to immigration are (a) to permit Canada to pursue the maximum social, cultural and economic benefits of immigration; (b) to enrich and strengthen the social and cultural fabric of Canadian society, while respecting the federal, bilingual and multicultural character of Canada; . . . (c) to support the development of a strong and prosperous Canadian economy, in which the benefits of immigration are shared across all regions of Canada; (d) to see that families are reunited in Canada; (e) to promote the successful integration of permanent residents into Canada, while recognizing that integration involves mutual obligations for new immigrants and Canadian society; . . . (h) to protect public health and safety and to maintain the security of Canadian society; (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 (j) to work in cooperation with the provinces to secure better recognition of the foreign credentials of permanent residents and their more rapid integration into society.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6368,7 +6368,7 @@ "text": "As stated above, the IRPA aims to permit Canada to obtain the benefits of immigration, while recognizing the need for security and outlining the obligations of permanent residents. The Minister emphasizes the IRPA ’s security objective. Yet, as the Chief Justice explained in Medovarski, the security objective in the IRPA “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” (para. 10). The obligation under the IRPA to behave lawfully includes not engaging in “serious criminality” as defined in s. 36(1). So long as this obligation is met, the IRPA ’s objectives related to “successful integration” will remain relevant to permanent residents, and the IRPA ’s objectives related to the “benefits of immigration” and “security” will be furthered.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6386,7 +6386,7 @@ "text": "A similar interaction between the mutual obligations of the state and of individuals, in the criminal law context, has been described as follows: The state’s duty to provide a framework for security may be presented as part of a bargain between the state and its citizens, a bargain in which a measure of security is provided in return for a measure of obedience. . . . . . . . . . The fundamental duty of justice requires the state to recognise certain rights of individuals in its dealings with them; notably, in the sphere of criminal law, the state should respect the rule of law and the principle of legality, so that citizens as rational agents may plan their lives so as to avoid criminal conviction. (A. Ashworth, Positive Obligations in Criminal Law (2013), at pp. 100-101) This description is apposite in the immigration law context. Permanent residents too must be able to “plan their lives”. Their obligations must be communicated to them in advance. As Lon Fuller warned, a legal system must “publicize, or at least . . . make available to the affected party, the rules he is expected to observe” (The Morality of Law (rev. ed. 1969), at p. 39). When Mr. Tran committed his offence, he could not have been aware that doing so was an act of “serious criminality” that might breach his obligations and lead to deportation.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6404,7 +6404,7 @@ "text": "The Minister relies on Medovarski, at para. 47, for the proposition that permanent residents cannot expect that “the law will not change from time to time”. The Minister argues that admissibility under s. 36(1)(a) must be tested against Parliament’s views of the seriousness of the offence at the time of the admissibility decision. I do not agree. While Parliament is entitled to change its views on the seriousness of a crime, it is not entitled to alter the mutual obligations between permanent residents and Canadian society without doing so clearly and unambiguously. In this case, it has failed to do so. As such, s. 36(1)(a) must be interpreted in a way that respects these mutual obligations. The right to remain in Canada is conditional, but it is conditional on complying with knowable obligations. Accordingly, the relevant date for assessing serious criminality under s. 36(1)(a) is the date of the commission of the offence, not the date of the admissibility decision.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6422,7 +6422,7 @@ "text": "The presumption against retrospectivity lends further support to this conclusion. While I agree with the Court of Appeal that s. 11( i ) of the Charter does not apply to the decision of the Minister’s delegate because the proceedings were neither criminal nor penal, the presumption against retrospectivity is a rule of statutory interpretation that is available in the instant case. The purpose of this presumption is to protect acquired rights and to prevent a change in the law from “look[ing] to the past and attach[ing] new prejudicial consequences to a completed transaction” (Driedger (1983), at p. 186). The presumption works such that “statutes are not to be construed as having retrospective operation unless such a construction is expressly or by necessary implication required by the language of the Act” (Gustavson Drilling (1964) Ltd. v. Minister of National Revenue, [1977] 1 S.C.R. 271, at p. 279; see also British Columbia v. Imperial Tobacco Canada Ltd., 2005 SCC 49, [2005] 2 S.C.R. 473, at para. 71).\n\nThe presumption against retrospectivity engages the rule of law. Lord Diplock explained that the rule of law “requires that a citizen, before committing himself to any course of action, should be able to know in advance what are the legal consequences that will flow from it” (Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G., [1975] A.C. 591 (H.L.), at p. 638). As this Court explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at para. 70, the rule of law “vouchsafes to the citizens and residents of the country a stable, predictable and ordered society in which to conduct their affairs”.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6440,7 +6440,7 @@ "text": "The presumption against retrospectivity also bespeaks fairness (R. v. K.R.J., 2016 SCC 31, [2016] 1 S.C.R. 906, at para. 25). For example, sentencing judges are required to consider immigration consequences (R. v. Pham, 2013 SCC 15, [2013] 1 S.C.R. 739). It would raise issues of fairness to introduce a new collateral consequence after sentencing that would have been relevant before sentencing. As Mr. Tran points out, a permanent resident convicted of marihuana production 25 years ago would suddenly find themselves inadmissible years after having served the associated sentence. Such an outcome would not only offend fairness and the rule of law, but would also undermine the decision of the sentencing judge who decades ago crafted an appropriate sentence without knowledge of additional deportation consequences.\n\nThe Minister argues that the presumption against retrospectivity cannot assist Mr. Tran because this Court’s decision in Brosseau v. Alberta Securities Commission, [1989] 1 S.C.R. 301, precludes its application. I disagree.\n\nIn Brosseau, this Court held that the presumption will not apply if the new prejudicial consequence at issue is designed to protect the public rather than as a punishment for a prior event. The fact that s. 36(1) (a) of the IRPA reflects “an intent to prioritize security” (Medovarski, at para. 10) is not, in itself, sufficient to bring it within the “public protection” exception contemplated in Brosseau. To interpret the public protection exception as inclusive of all legislation that can be said to be broadly aimed at public protection would ignore the purpose underlying the presumption against retrospectivity.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6458,7 +6458,7 @@ "text": "The presumption is a tool for discerning the intended temporal scope of legislation. In the absence of an indication that Parliament has considered retrospectivity and the potential for it to have unfair effects, the presumption must be that Parliament did not intend them: The absence of a general requirement of legislative prospectivity exists despite the fact that retrospective and retroactive legislation can overturn settled expectations and is sometimes perceived as unjust: see E. Edinger, “Retrospectivity in Law” (1995), 29 U.B.C. L. Rev. 5, at p. 13. Those who perceive it as such can perhaps take comfort in the rules of statutory interpretation that require the legislature to indicate clearly any desired retroactive or retrospective effects. Such rules ensure that the legislature has turned its mind to such effects and “determined that the benefits of retroactivity (or retrospectivity) outweigh the potential for disruption or unfairness”: Landgraf v. USI Film Products, 511 U.S. 244 (1994), at p. 268. [Emphasis added.] (Imperial Tobacco, at para. 71, per Major J.)\n\nThe presumption exists to ensure that laws will only apply retrospectively where Parliament has clearly signaled that it has weighed the benefits of retrospectivity with its potential unfairness. Otherwise, we presume that Parliament did not intend such effects.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6476,7 +6476,7 @@ "text": "Ordinarily, express language or necessary implication (Gustavson Drilling, at p. 279) provides this necessary indication that Parliament has turned its mind to the issue of retrospectivity. The “public protection” exception permits protective legislation to operate retrospectively absent express language or necessary implication, provided that legislative intent otherwise supports doing so. But, in accordance with the underlying purpose of the presumption, the exception is only triggered where the design of the penalty itself signals that Parliament has weighed the benefits of retrospectivity against its potential for unfairness. This will be the case where there is a clear nexus between the protective measure and the risks to the public associated with the prior conduct to which it attaches. In such cases, as in Brosseau, the scope of protection is aligned with the specific risks posed by persons who have engaged in specific harmful conduct and is tailored to preventing those risks prospectively (see Brosseau, at pp. 319-20, citing R. v. Vine (1875), L.R. 10 Q.B. 195, at p. 199; see also In re A Solicitor’s Clerk, [1957] 1 W.L.R. 1219 (Q.B.)).", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6494,7 +6494,7 @@ "text": "Section 36(1) (a) of the IRPA fails to provide such a clear nexus for two reasons, both of which are tied to the fact that Parliament relied on criminal sentences as a gauge for “serious criminality”. First, by not associating “serious criminality” with specific offences and instead relying on the sentences they attract, Parliament contemplated that the range of offences constituting “serious criminality” can expand and contract over time. This suggests that Parliament intended to tailor the penalty to prevailing views about a particular conduct, not to the prevention of risks associated with that conduct (F.C.A. reasons, at para. 58). Second, as “serious criminality” is defined by reference to criminal sentences, the scope of public protection it affords necessarily captures criminal sentencing considerations that extend beyond “public protection”, including punishment (see R. v. Hooyer, 2016 ONCA 44, 129 O.R. (3d) 81, at para. 42; K.R.J., at paras. 31-32).\n\nAs such, s. 36(1)(a) does not engage the “public protection” exception because — in the absence of a clear nexus between the risk and the protective measures available in response — it does not signal that Parliament weighed the potential for unfairness and the protective benefits of requiring that the class of non-citizens inadmissible for serious criminality remain perfectly aligned with the class of offences that s. 36(1)(a) deems “serious” at any point in time.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6512,7 +6512,7 @@ "text": "For these reasons, I am of the view that “punishable by a maximum term of imprisonment of at least 10 years” refers to the maximum sentence that the accused person could have received at the time of the commission of the offence. The maximum sentence that Mr. Tran could have received at that time was only seven years. Thus he was not convicted of an offence “punishable by a maximum term of imprisonment of at least 10 years”. C. Decision by the Minister’s Delegate to Refer\n\nThe Minister’s delegate formed the opinion that the Report on Mr. Tran’s inadmissibility for serious criminality was well founded, and he referred the Report to the Immigration Division on that basis. Because that opinion was premised on an untenable interpretation of the grounds for inadmissibility under s. 36(1)(a), his decision to refer the Report cannot be sustained. It is therefore unnecessary for me to consider whether he properly exercised his discretion under s. 44(2). V. Conclusion\n\nI would allow the appeal, quash the decision of the Minister’s delegate, and remit the matter to a different delegate.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6530,7 +6530,7 @@ "text": "Additionally, while this Court’s analysis is not limited to the certified questions, in the interest of providing guidance on the legal questions addressed by the Federal Court and Federal Court of Appeal, I would answer those questions as follows: 1. Is a conditional sentence of imprisonment imposed pursuant to the regime set out in ss. 742 to 742.7 of the Criminal Code a “term of imprisonment” under s. 36(1) (a) of the IRPA ? ― No. 2. Does the phrase “punishable by a maximum term of imprisonment of at least 10 years” in s. 36(1) (a) of the IRPA refer to the maximum term of imprisonment available at the time the person was sentenced or to the maximum term of imprisonment under the law in force at the time admissibility is determined? ― It refers to the maximum term of imprisonment available at the time of the commission of the offence. Appeal allowed.", "current_to": "2017-10-19", "last_amended": "", - "history": "Also reported: [2017] 2 SCR 289", + "history": "[2017] 2 SCR 289", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/16803/index.do" }, { @@ -6548,7 +6548,7 @@ "text": "The smuggling of human beings across international frontiers is a matter of increasing concern all over the world. Those who are smuggled pay large sums for what are frequently life-threatening journeys to countries for which they have no documentation or right of entry. Some of these migrants are refugees who have a well-founded fear of persecution in their home country and a right to protection under Canadian and international law. The smugglers, for their part, cynically prey on these people’s desperate search for better lives to enrich themselves without heed to the risks their victims face. The smugglers’ activities are often controlled by extensive transnational criminal organizations which Canada and other states seek to combat through multilateral cooperation. Canada is a party to a number of international instruments aimed both at protecting refugees and combatting human smuggling. These commitments are reflected in the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), and elsewhere in Canadian law.\n\nThese appeals concern s. 37(1) (b) of the IRPA , which renders a person inadmissible to Canada, and effectively denies that person access to refugee determination procedures, if he or she has engaged in, in the context of transnational crime, activities such as people smuggling, trafficking in persons or money laundering.\n\nThe appellants were all found inadmissible to Canada under s. 37(1) (b) of the IRPA on the basis of an interpretation that did not require that the conduct leading to inadmissibility be for profit or be connected with an organized criminal operation. Their situations vary. However, all say they were simply helping fellow asylum-seekers flee persecution, and were not engaged in people smuggling.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6566,7 +6566,7 @@ "text": "Three questions arise. First, is “people smuggling” in s. 37(1)(b) confined to activities conducted, “directly or indirectly”, for “a financial or other material benefit”? Second, what limits flow from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nI conclude that s. 37(1) (b) of the IRPA applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. In coming to this conclusion, I outline the type of conduct that may render a person inadmissible to Canada and disqualify the person from the refugee determination process on grounds of organized criminality. I find, consistently with my reasons in the companion appeal in R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754, that acts of humanitarian and mutual aid (including aid between family members) do not constitute people smuggling under the IRPA .\n\nI would return these matters to the Immigration and Refugee Board (“Board”) for a new hearing in accordance with these reasons. II. Facts and Judicial History A. Facts\n\nMr. Hernandez is a native of Cuba who was accepted as a refugee by the United States in 2001. Two years later, he purchased a boat with two others and used it to transport 48 Cubans to the United States without the knowledge of U.S. authorities. Convicted in the United States of alien smuggling and receiving a deportation order from the U.S., he came to Canada and claimed refugee protection.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6584,7 +6584,7 @@ "text": "B306, J.P., G.J. and B010 are among a group of nearly 500 Tamils from Sri Lanka who boarded the cargo ship Sun Sea in Thailand. The organizers of the voyage promised to transport them to Canada for sums ranging from $20,000 to $30,000 per person. Shortly after departure, the Thai crew abandoned the ship, leaving the asylum-seekers on board to their own devices. Twelve of the migrants took over various duties during the three-month voyage across the Pacific Ocean to Canada. The ship was dilapidated, unsafe and crowded. Food was in short supply and the fear of interception was constant.\n\nB010 worked two three-hour shifts in the engine room each day, monitoring the temperature, water and oil level of the equipment, without, he says, remuneration or benefit.\n\nJ.P., who was accompanied by his wife G.J., stood lookout, read the GPS and radar, and acted as an assistant navigator during the voyage, in return for which he and his wife lived in crew quarters and benefited from more humane conditions than most of the migrants. G.J. was initially ruled inadmissible for consideration as a refugee under s. 42 (a) of the IRPA , as an accompanying family member of a person ruled inadmissible. She has since been admitted as a refugee to Canada, rendering her appeal in this case moot. However, her husband has been declared inadmissible under s. 37(1)(b) because of his work on the ship, and faces potential deportation.\n\nB306 volunteered to act as a cook and lookout in order to receive better rations because, he asserts, he was hungry and in poor health. He cooked three meals a day for the crew, and used a telescope to spot approaching trawlers and notify the crew so that passengers could be hidden below deck to avoid interception.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6602,7 +6602,7 @@ "text": "The IRPA contemplates two streams of refugee claimants — people who apply for refugee status from outside the country and obtain a visa to enter Canada (s. 99(2)); and people who apply from inside Canada (s. 99(3)). The majority of refugee claimants to Canada fall into the first stream. The Sun Sea passengers and Mr. Hernandez fell into the second stream.\n\nMigrants in the second stream face deportation under either of two provisions. First, they may be treated as inadmissible under s. 41 of the IRPA , and made subject to a conditional removal order pursuant to s. 44. Second, they may be declared inadmissible under s. 37(1) (b) of the IRPA on grounds of organized criminal people smuggling.\n\nMost of the Sun Sea migrants — 451 of the 492 — were ruled inadmissible under s. 41 and issued conditional removal orders. The appellants, however, were dealt with under s. 37(1)(b), on the ground that they had been engaged in organized criminal smuggling. The result of being ruled inadmissible under s. 37(1)(b) is that the refugee claimant is peremptorily excluded from Canada without consideration of his or her claim on the merits: s. 101(1)(f). B. Judicial History\n\nThe Board found the appellants inadmissible to Canada, on the basis that s. 37(1) (b) of the IRPA covers all acts of assistance to illegal migrants and, in particular, does not require a profit motive. It ruled that Mr. Hernandez was also inadmissible under s. 36(1)(b) (serious criminality) because of his prior conviction in the U.S. of alien smuggling.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6620,7 +6620,7 @@ "text": "On judicial review to the Federal Court, different judges took different views on the scope of s. 37(1)(b). B010’s application was rejected (Noël J., 2012 FC 569, [2014] 1 F.C.R. 95), while the applications of J.P. and G.J., B306 and Mr. Hernandez were allowed (Mosley J., 2012 FC 1466, [2014] 2 F.C.R. 146; Gagné J., 2012 FC 1282, [2014] 2 F.C.R. 128; and Zinn J., 2012 FC 1417, 422 F.T.R. 159, respectively).\n\nThe cases were appealed to the Federal Court of Appeal, which opted for a broad view of the activity caught by s. 37(1)(b). B010’s appeal was rejected (Evans, Dawson and Stratas JJ.A., 2013 FCA 87, [2014] 4 F.C.R. 326) on the ground that s. 37(1)(b) catches all acts of assistance to undocumented migrants, and in particular, does not require that the activity be conducted for financial or other material benefit. Taking the same broad view of s. 37(1)(b) in the remaining cases, the court (Sharlow, Mainville and Near JJ.A., 2013 FCA 262, [2014] 4 F.C.R. 371) allowed the appeals and reinstated the Board’s decisions of inadmissibility. III. The Issues\n\nThe main issue in these appeals is what conduct makes a person inadmissible to apply for refugee status for having engaged in people smuggling under s. 37(1) (b) of the IRPA . Is it any and all assistance to undocumented migrants to Canada, as the respondent Minister of Citizenship and Immigration and the respondent Minister of Public Safety and Emergency Preparedness (collectively referred to as “the Ministers”) contend? Or is the prohibited range of conduct narrower, as the appellants contend? If so, precisely what is the range of conduct caught by s. 37(1)(b)?", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6638,7 +6638,7 @@ "text": "The answer to this latter question depends on the answer to three more particular questions. First, is “people smuggling” in s. 37(1) (b) of the IRPA limited to activity that is done “in order to obtain, directly or indirectly, a financial or other material benefit”? Second, what limits may be inferred from s. 37(1), which provides that a person is declared inadmissible on the grounds of “organized criminality”? Third, what is the effect of the requirement in s. 37(1)(b) that the smuggling be “in the context of transnational crime”?\n\nIf s. 37(1)(b) applies broadly to any assistance to undocumented migrants, as the Federal Court of Appeal held, a further issue arises: Does s. 37(1)(b) violate s. 7 of the Canadian Charter of Rights and Freedoms in a manner that is not justified under s. 1, with the result that it is unconstitutional? Related to this is whether s. 7 of the Charter is properly engaged at the stage of determining admissibility as a refugee.\n\nA final issue arises from B306’s assertion that his conduct is non-culpable because of duress and necessity. IV. Discussion A. Standard of Review\n\nThe parties disagree as to the standard of review applicable to the Board’s decision.\n\nThere are potentially two issues to which the standard of review may be relevant: (1) the statutory interpretation of s. 37(1) (b) of the IRPA ; and (2) the Board’s application of s. 37(1)(b). This case turns on the statutory interpretation of the provision, which is determinative.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6656,7 +6656,7 @@ "text": "Recent decisions in the Federal Court of Appeal have taken different views on whether questions of statutory interpretation involving consideration of international instruments should attract review on the standard of correctness or of reasonableness. In Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324, [2014] 2 F.C.R. 224, at paras. 22-25, the court applied a correctness standard; while in B010’s appeal, now before us, the court concluded that reasonableness was the appropriate standard.\n\nThis being the home statute of the tribunal and Ministers, there is a presumption that the standard of review is reasonableness: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 34. The question is whether this presumption has been displaced in the appeals before us.\n\nWe find it unnecessary to resolve this issue on these appeals. In our view, for the reasons discussed below, the interpretation of s. 37(1) (b) of the IRPA taken by the Board and supported by the Ministers was not within the range of reasonable interpretations. B. The Conduct Captured by Section 37(1)(b)\n\nAt the relevant time, s. 37(1)(b) provided as follows: 37. (1) [Organized criminality] A permanent resident or a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. In my view, there is no important difference between the English and French versions. (See relevant IRPA provisions set out in Appendix A.)", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6674,7 +6674,7 @@ "text": "Section 37(1) (b) of the IRPA performs a gatekeeping function. People who fall within it cannot have their refugee claims determined, regardless of the merits. The respondents say that the term “people smuggling” in s. 37(1)(b) should be interpreted broadly as barring anyone who knowingly assisted a person to enter a country illegally. This would catch the appellants, who argue for a narrower interpretation that would allow them to have their refugee claims determined in Canada.\n\nThe range of conduct captured by s. 37(1) (b) of the IRPA is a matter of statutory interpretation. The modern rule of statutory interpretation requires us to read “the words of an Act . . . in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at p. 7; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at para. 26. (1) The Words of Section 37(1)(b) Read in Their Ordinary and Grammatical Sense\n\nThe starting point for the interpretation of s. 37(1)(b) is the ordinary and grammatical sense of the words used. At this point, the question is what the ordinary and grammatical sense of the words suggests on two questions: whether s. 37(1)(b) is confined to activity directed at “financial or other material benefit”; and what limits may be inferred from the phrases “on grounds of organized criminality” and “in the context of transnational crime”.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6692,7 +6692,7 @@ "text": "Under the marginal note “Organized criminality”, s. 37(1) provides that “a foreign national is inadmissible on grounds of organized criminality for . . . (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering”.\n\nThe meaning of each of these phrases must be considered.\n\nI begin with the ordinary and grammatical meaning of “people smuggling”. The appellants argue that the ordinary meaning of this phrase involves a financial or other benefit to the smuggler. I do not agree. There is no express mention in s. 37(1)(b) of a profit motive and I cannot find a financial benefit requirement on the ordinary and grammatical meaning of the words alone.\n\nI turn next to the ordinary and grammatical meaning of “organized criminality”. While the phrase “organized crime” is generally understood as involving a profit motive, the phrase “organized criminality” is arguably broad enough to include organized criminal acts for non-pecuniary motives, such as terrorism or sexual exploitation.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6710,7 +6710,7 @@ "text": "This leaves the ordinary and grammatical sense of the phrase “in the context of transnational crime”. The meaning of this phrase is arguably broader than that of “organized criminality”. First, the words “in the context of” suggest that a loose connection to transnational crime may suffice. Second, the phrase “transnational crime” is arguably broader than “transnational organized crime”. However, when the words “in the context of transnational crime” are read together with the words “organized criminality” with a view to finding a harmonious meaning for s. 37(1)(b) as a whole, it becomes clear that “transnational crime” in s. 37(1)(b), construed in its ordinary and grammatical sense, refers to organized transnational crime. Since the provision renders people inadmissible on grounds of “organized criminality”, the words “transnational crime” cannot be read as including non-organized individual criminality. In summary, the words of s. 37(1)(b), read in their ordinary and grammatical sense, suggest that the provision applies to acts of illegally bringing people into Canada, if that act is connected to transnational organized criminal activity. (2) The Statutory Context of Section 37(1)(b)\n\nReference to the ordinary grammatical sense of the words used is only the first step in the statutory interpretation of s. 37(1)(b). A statutory provision should be interpreted in its entire context and harmoniously with the scheme of the legislation. As we will see, the broader statutory context of s. 37(1)(b) suggests that the provision targets organized criminal activity in people smuggling for financial or other material benefit, and not asylum-seekers rendering each other mutual assistance.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6728,7 +6728,7 @@ "text": "The first contextual consideration is the relationship between s. 37(1)(b) and the rest of s. 37(1). Subsection (1) introduces the concept of inadmissibility on grounds of organized criminality. Paragraphs (a) and (b) are instances of organized criminality. Section 37(1)(a) makes membership in criminal organizations one ground of inadmissibility, while s. 37(1)(b) makes “engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering” another. Read in the context of s. 37(1) as a whole, it is clear that the focus of s. 37(1)(b), like that of s. 37(1)(a), is organized criminal activity.\n\nThe second consideration is the relationship between inadmissibility for people smuggling under s. 37(1)(b) and other grounds of inadmissibility under the IRPA . The respondents argue that interpreting “people smuggling” to require a financial or other material benefit requirement fails to catch smuggling undertaken for other nefarious purposes, such as sexual exploitation or terrorism. Confining s. 37(1)(b) to financial or other material benefit will thus leave a gap in the statutory scheme, they argue. This contention overlooks other inadmissibility provisions in the IRPA . A person whose admission is not barred by s. 37(1)(b) may nevertheless be denied entry to Canada on grounds of national security (s. 34); human or international rights violations (s. 35); serious criminality (s. 36(1)); and criminality simpliciter (s. 36(2)).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6746,7 +6746,7 @@ "text": "A third contextual consideration is the relationship between s. 37(1)(b) and the related offence provision in s. 117. As I explain in Appulonappa (released concurrently), the language of s. 117 is broad enough to catch anyone who assists an undocumented person to enter Canada. The respondents in these appeals in effect suggest that the narrower language of s. 37(1)(b) should be “read up” to mirror the broad language of s. 117, as was done by the Board and the Federal Court of Appeal.\n\nI cannot agree. In Appulonappa, I conclude that the broad scope of s. 117(1) exceeds Parliament’s purpose, rendering it overbroad and to this extent unconstitutional. A provision that is unconstitutionally overbroad cannot be used to widen a narrower provision. In any event, where Parliament has placed specific limits within a provision, these cannot be ignored on the ground that Parliament has cast a different provision more broadly.\n\nA fourth contextual consideration is the definition of “criminal organization” in s. 467.1(1) of the Criminal Code , R.S.C. 1985, c. C-46 . The Criminal Code definition of “criminal organization” expressly requires a financial or other material benefit: “criminal organization” means a group, however organized, that (a) is composed of three or more persons in or outside Canada; and (b) has as one of its main purposes or main activities the facilitation or commission of one or more serious offences that, if committed, would likely result in the direct or indirect receipt of a material benefit, including a financial benefit, by the group or by any of the persons who constitute the group. It does not include a group of persons that forms randomly for the immediate commission of a single offence.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6764,7 +6764,7 @@ "text": "While “organized criminality” and “criminal organization” are not identical phrases, they are logically and linguistically related and, absent countervailing considerations, should be given a consistent interpretation.\n\nThe legislative history of s. 37(1)(b) of the IRPA and the Criminal Code ’s definition of “criminal organization” strongly support this conclusion. Both provisions were enacted in anticipation of Canada’s obligations under the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209 (generally known, and referred to here, as the “Palermo Convention”). As explained below, the Protocol against the Smuggling of Migrants by Land, Sea and Air, 2241 U.N.T.S. 480 (“Smuggling Protocol”), is one of three protocols under this convention. (See relevant provisions in Appendix B.)\n\nThe Criminal Code definition of “criminal organization” was amended in 2001 by Bill C-24, An Act to amend the Criminal Code (organized crime and law enforcement) and to make consequential amendments to other Acts, S.C. 2001, c. 32. On second reading of the bill in the House of Commons, the Minister of Justice at the time, the Hon. Anne McLellan, explained that the new definition reflected Canada’s signature of the Palermo Convention (which was not then in force): House of Commons Debates, vol. 137, No. 046, 1st Sess., 37th Parl., April 23, 2001, at p. 2954. See also R. J. Currie and J. Rikhof, International & Transnational Criminal Law (2nd ed. 2013), at pp. 345-46.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6782,7 +6782,7 @@ "text": "Similarly, s. 37(1) (b) of the IRPA was enacted in 2001 to deal with organized criminality in people smuggling and related activities pursuant to Canada’s obligations under the Palermo Convention and the related Smuggling Protocol. As the Assistant Deputy Minister, Citizenship and Immigration, Joan Atkinson put it at the time, s. 37(1) introduced “new inadmissibility provisions specifically directed at that form of organized crime”: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40.\n\nThus the apparent similarity between the IRPA concept of “organized criminality” and the Criminal Code concept of “criminal organization” is no coincidence. Both provisions were enacted to give effect to the same international regime for the suppression of transnational crimes such as people smuggling. Section 37(1)(b) should be interpreted harmoniously with the Criminal Code ’s definition of “criminal organization” as involving a material, including financial, benefit. (3) The International Context of Section 37(1)(b) (a) International Law as Context: General Relevance", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6800,7 +6800,7 @@ "text": "This Court has previously explained that the values and principles of customary and conventional international law form part of the context in which Canadian laws are enacted: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53. This follows from the fact that to interpret a Canadian law in a way that conflicts with Canada’s international obligations risks incursion by the courts in the executive’s conduct of foreign affairs and censure under international law. The contextual significance of international law is all the more clear where the provision to be construed “has been enacted with a view towards implementing international obligations”: National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at p. 1371. That is the case with the IRPA , the refugee protection aspects of which serve principally to discharge Canada’s obligations under the 1951 Convention relating to the Status of Refugees, 189 U.N.T.S. 150, and its 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267 (together the “Refugee Convention”), but also, as explained below, Canada’s obligations under the Smuggling Protocol.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6818,7 +6818,7 @@ "text": "In keeping with the international context in which Canadian legislation is enacted, this Court has repeatedly endorsed and applied the interpretive presumption that legislation conforms with the state’s international obligations: see, e.g., Zingre v. The Queen, [1981] 2 S.C.R. 392, at pp. 409-10; Ordon Estate v. Grail, [1998] 3 S.C.R. 437, at paras. 128-31; GreCon Dimter inc. v. J.R. Normand inc., 2005 SCC 46, [2005] 2 S.C.R. 401, at para. 39; United States of America v. Anekwu, 2009 SCC 41, [2009] 3 S.C.R. 3, at para. 25; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34; Thibodeau v. Air Canada, 2014 SCC 67, [2014] 3 S.C.R. 340, at para. 113. This interpretive presumption is not peculiar to Canada. It is a feature of legal interpretation around the world. See generally A. Nollkaemper, National Courts and the International Rule of Law (2011), at c. 7.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6836,7 +6836,7 @@ "text": "These principles, derived from the case law, direct us to relevant international instruments at the context stage of statutory interpretation. Furthermore, two interpretive provisions from s. 3 of the IRPA make Parliament’s presumed intent to conform to Canada’s international obligations explicit. Section 3(2)(b) expressly identifies one of the statute’s objectives as “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”. Similarly, s. 3(3)(f) instructs courts to construe and apply the IRPA in a manner that “complies with international human rights instruments to which Canada is signatory” (see de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655, at paras. 82-83 and 87). There can be no doubt that the Refugee Convention is such an instrument, building as it does on the right of persons to seek and to enjoy asylum from persecution in other countries as set out in art. 14 of the Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (1948).\n\nI conclude that it is appropriate to consider the relevant international instruments in interpreting s. 37(1)(b): the Palermo Convention and its protocols, and the Refugee Convention. (b) The Palermo Convention and Its Protocols", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6854,7 +6854,7 @@ "text": "In addition to the international context of Canadian legislation generally, and of the IRPA in particular, s. 37(1)(b) finds its origin in international law, namely the Palermo Convention and the related Smuggling Protocol. The Palermo Convention was opened for signature in December 2000, together with two supplementing protocols, the Smuggling Protocol and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, 2237 U.N.T.S. 319 (the “Human Trafficking Protocol”). (A third protocol, concerning the illicit manufacturing of and trafficking in firearms, was adopted later but has no bearing on these appeals.) A key distinction between the Smuggling Protocol and the Human Trafficking Protocol lies in the concepts of coercion and consent. The latter protocol defines human trafficking as involving threats or use of force, abduction, deception, fraud or other forms of coercion against the trafficked person. By contrast, the Smuggling Protocol applies to cases where the smuggler and the smuggled agree that the former will procure the latter’s illegal entry into a state, in consideration of a financial or other material benefit. While the lines between trafficking and smuggling may sometimes blur, the presence or absence of consent remains an organizing principle of the two Palermo Convention protocols.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6872,7 +6872,7 @@ "text": "Article 6(1)(a) of the Smuggling Protocol requires states parties to adopt measures to establish migrant smuggling as a criminal offence, defined as procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). The term “financial or other material benefit” is also found in the definition of “organized criminal group” in art. 2(a) of the Palermo Convention.\n\nBoth the Palermo Convention and its two original protocols were drafted with a view to the need of states parties to meet their obligations under the earlier Refugee Convention. This is specifically reflected in art. 19(1) of the Smuggling Protocol, the “saving clause”, which provides as follows: 1. Nothing in this Protocol shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law and, in particular, where applicable, the 1951 Convention and the 1967 Protocol relating to the Status of Refugees and the principle of non-refoulement as contained therein. (See also art. 14(1) of the Human Trafficking Protocol.)", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6890,7 +6890,7 @@ "text": "The IRPA was enacted soon after the adoption of the Palermo regime, in the drafting of which Canada played an active role. This timing suggests that Parliament had these instruments in mind when it enacted s. 37(1)(b). The parliamentary record supports this inference. As Assistant Deputy Minister Atkinson said in explaining s. 37 before the House of Commons Standing Committee on Citizenship and Immigration: Clause 37 deals with organized criminality. I would point out paragraph 37(1)(b), which is new. That is organized criminality: (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or money laundering. So those are new inadmissibility provisions specifically directed at that form of organized crime. (Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001 (online), at 10:40)\n\nSection 37(1)(b)’s express mention of the three activities of (a) people smuggling, (b) trafficking in persons, and (c) money laundering, indisputably refers to the Palermo Convention and its two protocols. Money laundering is addressed in the Palermo Convention itself, while its protocols target the other two activities.\n\nIn summary, it is clear that s. 37(1)(b) must be read against the backdrop of Canada’s commitment to combatting criminal activity related to people smuggling. (c) The Refugee Convention", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6908,7 +6908,7 @@ "text": "Article 31(1) of the Refugee Convention provides: 1. The Contracting States shall not impose penalties, on account of their illegal entry or presence, on refugees who, coming directly from a territory where their life or freedom was threatened in the sense of article 1, enter or are present in their territory without authorization, provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence. The import of this prohibition for domestic admissibility provisions is clear. As A. T. Gallagher and F. David put it, “an individual cannot be denied refugee status — or, most important, the opportunity to make a claim for such status through fair assessment procedures — solely because of the way in which that person sought or secured entry into the country of destination”: The International Law of Migrant Smuggling (2014), at p. 165. Obstructed or delayed access to the refugee process is a “penalty” within the meaning of art. 31(1) of the Refugee Convention: ibid., at pp. 163-64.\n\nIt is undisputable that just as s. 37(1)(b) must be read against the backdrop of Canada’s international commitments to combat organized criminal people smuggling and related activities, it must also be read in a way that is consistent with the Refugee Convention.\n\nHaving introduced the relevant international instruments, I now turn to what light they shed on the interpretive issues arising from s. 37(1)(b) — first, whether s. 37(1)(b) requires activity directed at financial or other material benefit; and second, what conduct, more generally, is caught by s. 37(1)(b). (d) Financial or Other Material Benefit: Perspective From the International Instruments", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6926,7 +6926,7 @@ "text": "The Smuggling Protocol defines migrant smuggling as the procurement of illegal entry “in order to obtain, directly or indirectly, a financial or other material benefit”. The purpose of including financial or other material benefit as part of the definition of migrant smuggling is explained in the interpretive notes to art. 6: The reference to “a financial or other material benefit” as an element of the offences set forth in paragraph 1 was included in order to emphasize that the intention was to include the activities of organized criminal groups acting for profit, but to exclude the activities of those who provided support to migrants for humanitarian reasons or on the basis of close family ties. It was not the intention of the protocol to criminalize the activities of family members or support groups such as religious or non-governmental organizations. (United Nations Office on Drugs and Crime, Travaux préparatoires of the negotiations for the elaboration of the United Nations Convention against Transnational Organized Crime and the Protocols thereto (2006), at p. 489) As noted by Gallagher and David: “The relevant Interpretative Notes to the Protocol affirm that it was not the intention of the Protocol to criminalize the activities of family members or support groups such as religious or nongovernmental organizations” (p. 366). It thus “seems reasonably clear that certain benefits that may accrue from being involved in migrant smuggling, such as family reunification and safety, do not constitute ‘material’ benefits”: ibid.\n\nThe Refugee Convention supports the same conclusion.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6944,7 +6944,7 @@ "text": "Article 31(1) of the Refugee Convention prohibits states parties from penalizing refugees on account of their illegal entry. To interpret s. 37(1)(b) as omitting a financial or other benefit limitation would appear inconsistent with this rule.\n\nThe respondents contend that art. 31(1) of the Refugee Convention refers only to criminal penalties. This interpretation runs counter to the purpose of art. 31(1) and the weight of academic commentary: J. C. Hathaway, The Rights of Refugees Under International Law (2005), at pp. 409-12; Gallagher and David, at pp. 164-68; G. S. Goodwin-Gill and J. McAdam, The Refugee in International Law (3rd ed. 2007), at p. 266. The generally accepted view is that denying a person access to the refugee claim process on account of his illegal entry, or for aiding others to enter illegally in their collective flight to safety, is a “penalty” within the meaning of art. 31(1). The law recognizes the reality that refugees often flee in groups and work together to enter a country illegally. Article 31(1) thus does not permit a state to deny refugee protection (or refugee determination procedures) to refugees solely because they have aided others to enter illegally in an unremunerated, collective flight to safety. Rather, it targets those who assist in obtaining illegal entry for financial or other material benefit.\n\nArticle 5 of the Palermo Convention provides further assistance in understanding the conduct targeted by s. 37(1)(b).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6962,7 +6962,7 @@ "text": "Informed by the Palermo Convention, the phrase “in the context of transnational crime”, under s. 37(1) (b), of the IRPA captures the acts of (1) participating in the group’s actual criminal activities with knowledge the group has a criminal aim (art. 5(1)(a)(ii)a.); (2) participating in non-criminal acts of the group, with knowledge that the acts will further the group’s criminal aim (art. 5(1)(a)(ii)b.); or (3) organizing, abetting or counselling a serious crime involving the organized criminal group (art. 5(1)(b)).\n\nThis supports the view that acts committed by people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b). (4) Harmonious Reading With the Intention of Parliament\n\nFinally, I come to the requirement that we interpret s. 37(1)(b) harmoniously with the intention of Parliament. In this case, Parliament’s intention is gleaned mainly from the considerations that have already been discussed — the words of the provision, the legislative scheme and the context. The question at this point is whether there is other evidence that may point to a different intention on the part of Parliament.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6980,7 +6980,7 @@ "text": "If Parliament, in enacting s. 37(1)(b) in 2001, intended to erase the distinction between those who act for financial or material benefit and those who act for humanitarian purposes or give mutual assistance, one might expect some sign of this in the parliamentary record. But the record reveals no evidence that Parliament sought to ignore this distinction or to target conduct unconnected to transnational organized crime. Rather, the record supports the view that Parliament understood “people smuggling” in the sense that “migrant smuggling” is used in the Smuggling Protocol. There is nothing in the parliamentary record suggesting that Parliament sought to adopt a broader definition of people smuggling. Indeed, the Minister of the day expressly referred to the Palermo Convention and the Smuggling Protocol in her evidence on the new IRPA provisions before the Standing Committee on Citizenship and Immigration, without suggesting an intention to depart from the “financial or other material benefit” limitation (see Evidence, No. 2, 1st Sess., 37th Parl., March 1, 2001 (online), at 9:30 to 9:35).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -6998,7 +6998,7 @@ "text": "In addressing s. 117 of what became the IRPA (considered in Appulonappa) before the Standing Committee on Citizenship and Immigration, Assistant Deputy Minister Atkinson testified that the bill did not seek to impose penalties on those who helped refugees come to Canada or those who engaged in smuggling for humanitarian reasons. Discretion (it was said) was conferred on the Attorney General under s. 117(4) as a safeguard to protect from prosecution those seeking to aid refugees on humanitarian grounds: Standing Committee on Citizenship and Immigration, Evidence, No. 9, 1st Sess., 37th Parl., April 5, 2001 (online), at 10:50; and Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35 to 10:40. While s. 37(1)(b) was not directly addressed, those statements suggest that it was not Parliament’s intent to render refugees inadmissible under s. 37(1)(b) solely for providing mutual assistance to others in the course of their own illegal entry.\n\nTo adopt the interpretation of s. 37(1)(b) urged by the Ministers would lead to anomalous and unintended consequences.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -7016,7 +7016,7 @@ "text": "It is well established that Parliament should be presumed not to intend absurd results when it enacts legislation. Take, for example, the scenario proposed by B010 involving a family fleeing persecution, where the mother arranges to procure false travel documents, the father pays for the documents, and the daughter hides the documents as they flee their home (A.F., at para. 59). Upon arrival in Canada, they promptly disclose that their travel documents were false, and claim asylum. Without a financial or material benefit component, each family member has engaged in “people smuggling” and is inadmissible under s. 37(1)(b). As B010 phrases it, “Without the financial benefit requirement, it is not possible to differentiate the ‘smuggler’ from the ‘smuggled’” (ibid., at para. 60). The absurdity flows, in part, from the fact that, if each family member had procured, purchased, and concealed their own travel documents, without providing any mutual aid, it is undisputed that s. 37(1)(b) would not apply. Similarly, if a single person rather than a family arrived under the same circumstances, he or she would not be inadmissible. (5) Conclusion on Section 37(1)(b) as Applied to These Cases", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -7034,7 +7034,7 @@ "text": "The wording of s. 37(1)(b), its statutory and international contexts, and external indications of the intention of Parliament all lead to the conclusion that this provision targets procuring illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. To justify a finding of inadmissibility against the appellants on the grounds of people smuggling under s. 37(1)(b), the Ministers must establish before the Board that the appellants are people smugglers in this sense. The appellants can escape inadmissibility under s. 37(1)(b) if they merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety. C. The Defences of Duress and Necessity\n\nB306 argues that in the event he is found to fall within s. 37(1)(b), he should be able to raise the criminal law defences of duress and necessity. The Ministers conceded that the defences are available in principle. However, I prefer not to decide the issue, in the absence of full argument on how these defences would fit into the scheme of s. 37(1)(b) as construed in these reasons. This said, I agree with the Federal Court of Appeal that there is no substance to B306’s claim that the Board failed to consider B306’s defences of duress and necessity. D. The Constitutionality of Section 37(1)(b) Under Section 7 of the Charter", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -7052,7 +7052,7 @@ "text": "The appellants argue in the alternative that s. 37(1) (b) of the IRPA unconstitutionally violates s. 7 of the Charter on the basis that s. 37(1)(b) is overbroad in catching migrants mutually aiding one another and humanitarian workers. As a result, they submit that s. 37(1)(b) is of no force or effect under s. 52(1) of the Constitution Act, 1982 , to the extent it catches these groups. I have concluded that the appellants are entitled to a new hearing on the basis of the proper interpretation of s. 37(1)(b). Therefore, I find it unnecessary to consider the appellants’ constitutional challenge.\n\nThe argument is of no assistance in any event, as s. 7 of the Charter is not engaged at the stage of determining admissibility to Canada under s. 37(1). This Court recently held in Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, that a determination of exclusion from refugee protection under the IRPA did not engage s. 7, because “even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place” (para. 67). It is at this subsequent pre-removal risk assessment stage of the IRPA ’s refugee protection process that s. 7 is typically engaged. The rationale from Febles, which concerned determinations of “exclusion” from refugee status, applies equally to determinations of “inadmissibility” to refugee status under the IRPA . V. Conclusion", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -7070,7 +7070,7 @@ "text": "The tools of statutory interpretation — plain and grammatical meaning of the words; statutory and international contexts; and legislative intent — all point inexorably to the conclusion that s. 37(1)(b) applies only to people who act to further illegal entry of asylum-seekers in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational organized crime. I conclude that a migrant who aids in his own illegal entry or the illegal entry of other refugees or asylum-seekers in their collective flight to safety is not inadmissible under s. 37(1)(b).\n\nThe appellants were found inadmissible on an erroneous interpretation of s. 37(1)(b). They are entitled to have their admissibility reconsidered on the basis of the interpretation set out in these reasons. I would therefore allow their appeals and remit their cases for reconsideration by the Board. Mr. Hernandez, who was also found inadmissible under s. 36(1)(b), did not contest that finding in these proceedings, and this judgment does not disturb the Board’s determination of that matter.\n\nThe appeals are allowed with costs here and in the courts below.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 704", + "history": "[2015] 3 SCR 704", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15647/index.do" }, { @@ -7088,7 +7088,7 @@ "text": "On October 17, 2009, a vessel called the Ocean Lady was apprehended off the west coast of Vancouver Island, in British Columbia. Seventy-six people, among them the appellants, were aboard. All were Tamils from Sri Lanka. They claimed to have fled Sri Lanka because their lives were endangered in the aftermath of the civil war in that country. They asked for refugee status in Canada. None had the required legal documentation.\n\nThe Crown claims that the four appellants — the captain and chief crew of the vessel — were the organizers of the venture. The Crown alleges that the majority of passengers each paid, or promised to pay, $30,000 to $40,000 for the voyage.\n\nThe appellants were charged under s. 117 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), which makes it an offence to “organize, induce, aid or abet” the coming into Canada of people in contravention of the IRPA . Consequences of conviction could include lengthy imprisonment and disqualification from consideration as a refugee.\n\nBefore their trial, the appellants challenged the constitutionality of s. 117 of the IRPA , on the ground that it infringes the right to life, liberty and security of the person enshrined in s. 7 of the Canadian Charter of Rights and Freedoms . The trial judge ruled that the provision was unconstitutional because it criminalized not only organized people smuggling, but helping close family members to come to Canada and humanitarian assistance to refugees. The British Columbia Court of Appeal reversed that decision, and found the provision to be constitutional.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7106,7 +7106,7 @@ "text": "For the reasons that follow, I conclude that, insofar as s. 117 permits prosecution for humanitarian aid to undocumented entrants, mutual assistance amongst asylum-seekers or assistance to family members, it is unconstitutional. II. Facts and Judicial History A. Facts\n\nCanadian authorities intercepted the freighter ship Ocean Lady offshore of Vancouver Island. They found 76 passengers aboard; all were Tamil asylum-seekers from Sri Lanka who had boarded the ship in Southeast Asia: 24 boarded the ship in Indonesia between June and August 2009, and 52 in Thailand in September 2009. None of the 76 migrants had the proper documentation to enter Canada. Most had agreed to pay a sum of between $30,000 and $40,000 to come to Canada. Typically, down payments of $5,000 were exacted prior to boarding, together with undertaking a debt of another $25,000 to $35,000 to be paid subsequent to arrival in Canada.\n\nThe four appellants, Francis Anthonimuthu Appulonappa, Hamalraj Handasamy, Jeyachandran Kanagarajah and Vignarajah Thevarajah, are alleged to have been the point persons for a transnational for-profit operation to smuggle undocumented migrants from Southeast Asia to Canada. They are said to have been responsible for organizing the asylum-seekers in Indonesia and Thailand prior to boarding the freighter, and serving as the chief crew of the ship on the voyage to Canada — Mr. Handasamy as captain, Mr. Thevarajah as chief engineer, and Mr. Kanagarajah and Mr. Appulonappa as key crew members.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7124,7 +7124,7 @@ "text": "The appellants were charged with the offence of “Organizing entry into Canada” found in s. 117 of the IRPA , which, at the relevant time, provided: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.\n\nThe IRPA was amended by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, ss. 41(1) and 41(4), whereby s. 117(1) was replaced by a new subsection and two subsections were added, which came into force on December 15, 2012. Section 117 as it was at the time of the alleged offences of the appellants is therefore no longer in force. The constitutionality of the current s. 117 is not before us. B. British Columbia Supreme Court, 2013 BCSC 31, 358 D.L.R. (4th) 666\n\nThe appellants brought an application before Silverman J. on a voir dire for a declaration that s. 117 of the IRPA is unconstitutionally overbroad. They did not contend that s. 117 is unconstitutional as it applies to the allegations against them, which are that they were part of a for-profit smuggling operation. However, they argued that s. 117 is unconstitutional because it may lead to the conviction of humanitarian workers or family members assisting asylum-seekers for altruistic reasons. They argued that convicting people in these categories exceeds the legislative intent of s. 117 and infringes the guarantee of liberty contrary to the principle of fundamental justice against overbreadth. This violation of the liberty guarantee in s. 7 of the Charter was not justified under s. 1 of the Charter , they submitted.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7142,7 +7142,7 @@ "text": "The Crown accepted that the purpose of s. 117 was not to convict persons helping close family members come to Canada or persons providing legitimate humanitarian aid to people coming to Canada. However, it argued that this did not render s. 117 overbroad because s. 117(4) of the IRPA required that the Attorney General of Canada authorize prosecution, which would allow him to screen out people in these categories.\n\nSilverman J. concluded that, as the Crown contended, the purpose of s. 117 does not extend to prosecution of genuine humanitarian aid workers or family members. Because s. 117 permits the prosecution of such persons, it violates the s. 7 guarantee of liberty in a way that is overbroad, and hence not in accord with the principles of fundamental justice. Silverman J. held that s. 117 could not be interpreted or “read down” to make it Charter compliant and that the prior consent to prosecution required by s. 117(4) does not save s. 117 from being unconstitutionally overbroad. Nor, in his view, was the overbreadth justified under s. 1 of the Charter . Silverman J. therefore declared s. 117 of the IRPA to be inconsistent with s. 7 of the Charter and hence of no force or effect under s. 52 of the Constitution Act, 1982 . He ordered that the indictments of the appellants be quashed: 2013 BCSC 198. C. British Columbia Court of Appeal, 2014 BCCA 163, 355 B.C.A.C. 98", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7160,7 +7160,7 @@ "text": "Before the Court of Appeal, the Crown changed its submission on the purpose of s. 117 of the IRPA . It submitted that s. 117 was enacted to prevent all organizing or assisting of unlawful entry of others into Canada, including assistance to close family members and humanitarian assistance. This, the Crown said, was required to further Canada’s goals of (1) controlling who enters its territory; (2) protecting the health, safety, and security of Canadians; (3) preserving the integrity and efficacy of Canada’s lawful immigration and refugee claims regimes; and (4) promoting international justice and cooperation with other states on matters of security.\n\nThe Court of Appeal accepted this revised submission as the purpose of s. 117 of the IRPA and on that basis held it to be constitutional. Neilson J.A. (Bennett and Hinkson JJ.A. concurring) concluded that Canadian laws criminalizing assistance to undocumented migrants have not historically allowed exceptions based on the offender’s motive or other characteristics. When the provision at issue was enacted in 1988, the question of whether humanitarian workers should be exempted received attention, but Parliament, concerned about “definitional difficulties” and “loopholes”, rejected creating an exception for these groups: para. 107. The purpose of s. 117 therefore aligned with its reach, and the provision was not overbroad.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7178,7 +7178,7 @@ "text": "The court added that the s. 117(4) requirement of the Attorney General’s consent to prosecute would guard against improper prosecutions on humanitarian grounds, family grounds or other grounds. If the Attorney General were to authorize prosecution of people assisting close family members or providing humanitarian assistance, the vice would not be overbreadth of s. 117(1), but the improper exercise of ministerial discretion under s. 117(4).\n\nIn the result, the Court of Appeal allowed the appeal, overturned the declaration of invalidity, set aside the acquittals and remitted the matter for trial. III. The Statutory Scheme\n\nThe IRPA (relevant provisions set out in Appendix A) is a complex statute dealing with the entry into Canada of foreign nationals through two processes — the immigration process and the refugee protection process. We are here concerned primarily with the refugee protection process. The IRPA aims to establish “fair and efficient [refugee] 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”: s. 3(2)(e). Both goals are underpinned by Canada’s adhesion to international conventions and protocols, discussed more fully below.\n\nA significant concern for the integrity of Canada’s refugee protection system is the threat posed to it by the entry to Canada of unauthorized persons outside the lawful refugee regime. As part of combating this threat, the IRPA contains two provisions which sanction individuals for helping others to enter Canada without the documents required by border authorities.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7196,7 +7196,7 @@ "text": "Section 37(1) (b) of the IRPA renders a person inadmissible to Canada where the person has “engag[ed], in the context of transnational crime”, in people smuggling, and, in effect, prevents that person’s refugee claim from being determined on its merits. Section 117, under the marginal note “Organizing entry into Canada”, creates an offence. At the relevant time, it read: 117. (1) No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act.[1]\n\nSections 117(2) and 117(3) provide penalties of imprisonment and fines. At the time of the charges at issue in this case, s. 121(1) (c) of the IRPA under the marginal note “Aggravating factors”, stipulated that committing the offence for profit was a fact to be considered in sentencing under s. 117.[2]\n\nSubsection (4) provides a screening mechanism for instituting proceedings under s. 117 — prosecutions can proceed only with the consent of the Attorney General.\n\nIn summary, participating in the unauthorized entry of other people into Canada may have two consequences under the IRPA . First, it may result in prosecution and imprisonment and/or substantial fines upon conviction under s. 117. Second, it may render a person who engages in certain proscribed activities inadmissible to Canada under s. 37(1)(b). The first consequence — prosecution under s. 117 — is the subject of this appeal. The second consequence — inadmissibility to Canada — is the subject of the companion appeals in B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704. IV. The Issues", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7214,7 +7214,7 @@ "text": "The Charter applies to foreign nationals entering Canada without the required documentation: Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. Section 7 of the Charter provides: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. As a penal provision with potential sentences up to life imprisonment, it is clear that s. 117 of the IRPA threatens liberty and hence engages s. 7 of the Charter : Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 492.\n\nThe main issue before us is whether s. 117 of the IRPA threatens liberty, protected by s. 7 of the Charter , in a manner contrary to the principles of fundamental justice. If the answer is yes, a second question arises: Is the infringement justified under s. 1 of the Charter ? If the answer to this second question is no, a final question arises: What is the appropriate remedy for the constitutional infirmity in s. 117?\n\nThe appellants contend that s. 117 violates s. 7 of the Charter because the provision catches two categories of people outside its purpose — people who assist close family members to come to Canada and humanitarians who assist those fleeing persecution to come to Canada, in each case without required documents. The appellants say that s. 117 is therefore overbroad, contrary to the principles of fundamental justice. They also argue that s. 117 offends the principles of fundamental justice because its impact on liberty is grossly disproportionate to the conduct it targets, because it is unconstitutionally vague, and because it perpetuates inequality. V. Discussion A. Does Section 117 of the IRPA Violate Section 7 of the Charter ? (1) Overbreadth", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7232,7 +7232,7 @@ "text": "A law is said to violate our basic values by being overbroad when “the law goes too far and interferes with some conduct that bears no connection to its objective”: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at para. 101. As stated in Bedford, “[o]verbreadth allows courts to recognize that the law is rational in some cases, but that it overreaches in its effect in others”: para. 113; see also Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331, at para. 85.\n\nThe first step in the overbreadth inquiry is to determine the object of the impugned law. The second step is to determine whether the law deprives individuals of life, liberty or security of the person in cases that do not further that object. To the extent the law does this, it deprives people of s. 7 rights in a manner that infringes the principles of fundamental justice.\n\nThe appellants argue that s. 117 is overbroad, not as it applies to the conduct alleged against them, but as it applies to other reasonably foreseeable situations. It is indeed established that a court may consider “reasonable hypotheticals” to determine whether a law is consistent with the Charter : see R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7250,7 +7250,7 @@ "text": "The first scenario the appellants ask us to consider is the situation of a person assisting a close family member to flee to Canada. The appellants cite as examples a mother carrying her small child, or the father of a household taking his family dependants with him aboard a boat. This scenario could also encompass cases of mutual assistance among unrelated asylum-seekers. Indeed, refugees mutually assisting one another in their collective flight to safety is not meaningfully different from family members assisting one another and, as showed by the companion case B010, is a reasonably foreseeable situation.\n\nThe second scenario advanced by the appellants is the case of a person who, for humanitarian motives, helps people to flee from persecution. History is replete with examples of people who have aided others to flee persecution for humanitarian reasons. Sometimes the person is acting as an individual. Sometimes the person is a member of an organization devoted to helping people flee lands where they face threats and persecution. Church groups may help undocumented people find refugee protection in Canada: House of Commons Debates, vol. VII, 2nd Sess., 33rd Parl., August 12, 1987, at p. 8002 (Hon. Gerry Weiner, Minister of State (Immigration)). Humanitarian aid to fleeing people is not merely hypothetical; it is a past and current reality. (a) The Object of Section 117 of the IRPA\n\nAs discussed, overbreadth analysis turns on whether the reach of the law exceeds its object. The first step is therefore to determine the object of s. 117.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7268,7 +7268,7 @@ "text": "The Crown argues that the purpose of s. 117 is to catch all acts that in any way assist the entry of undocumented migrants. On this interpretation, s. 117 cannot be overbroad. The appellants, by contrast, submit that the offence of “human smuggling” has a narrower purpose than the Crown asserts, making it overbroad in catching all acts of assistance.\n\nAs with statutory interpretation, determining legislative purpose requires us to consider statements of legislative purpose together with the words of the provision, the legislative context, and other relevant factors: R. Sullivan, Sullivan on the Construction of Statutes (6th ed. 2014), at pp. 268-87; R. v. Chartrand, [1994] 2 S.C.R. 864, at pp. 879-82. Where legislation is enacted in the context of international commitments, international law may also be of assistance.\n\nFor the reasons that follow, I agree with the appellants that the purpose of s. 117 is narrower than that asserted by the Crown. The text of s. 117 is admittedly broad. However, a narrow purpose emerges from (1) the international instruments to which Canada has subscribed; (2) the role of s. 117 in relation to the statute as a whole, in particular s. 37(1); (3) the IRPA ’s statements of legislative purpose; (4) the evolution of s. 117; and (5) the parliamentary debates. Considering these indicia of purpose, it becomes evident that the true purpose of s. 117 is to combat people smuggling. The meaning of “people smuggling”, a term found in s. 37(1) (b) of the IRPA , is the subject of the companion case B010, and excludes mere humanitarian conduct, mutual assistance or aid to family members. I conclude that s. 117 violates the Charter by catching these categories of conduct outside the provision’s purpose. (i) The Text of the Provision", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7286,7 +7286,7 @@ "text": "At the relevant time, the text of s. 117 read as follows: 117. (1) [Organizing entry into Canada] No person shall knowingly organize, induce, aid or abet the coming into Canada of one or more persons who are not in possession of a visa, passport or other document required by this Act. (2) [Penalties — fewer than 10 persons] A person who contravenes subsection (1) with respect to fewer than 10 persons is guilty of an offence and liable (a) on conviction on indictment (i) for a first offence, to a fine of not more than $500,000 or to a term of imprisonment of not more than 10 years, or to both, or (ii) for a subsequent offence, to a fine of not more than $1,000,000 or to a term of imprisonment of not more than 14 years, or to both; and (b) on summary conviction, to a fine of not more than $100,000 or to a term of imprisonment of not more than two years, or to both. (3) [Penalty — 10 persons or more] A person who contravenes subsection (1) with respect to a group of 10 persons or more is guilty of an offence and liable on conviction by way of indictment to a fine of not more than $1,000,000 or to life imprisonment, or to both. (4) [No proceedings without consent] No proceedings for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7304,7 +7304,7 @@ "text": "All agree that the text of s. 117(1) is broad enough to catch assistance to close family members and humanitarian assistance. It may be argued that since Parliament used these words, that is what it intended. However, the doctrine of overbreadth recognizes that sometimes “the State, in pursuing a legitimate objective, uses means which are broader than is necessary to accomplish that objective”: R. v. Heywood, [1994] 3 S.C.R. 761, at p. 792; Bedford, at para. 101; Carter, at para. 85. The potential for “failures of instrumental rationality”, in which a given law is not a rational means to achieve a legislative objective, requires courts to go further than the text alone, and ask whether other considerations suggest Parliament’s purpose was narrower: Bedford, at para. 107.\n\nBefore leaving the text, it may be noted that despite the broad wording of the subsection that provides the elements of the offence (s. 117(1)), other portions of the text of s. 117 support the view that Parliament’s purpose was not to criminalize family or humanitarian assistance. The marginal note of s. 117, “Organizing entry into Canada”, read with the subheading “Human Smuggling and Trafficking”, while not to be accorded great weight (see Sullivan, at pp. 465-68), suggests that the provision is aimed at activity in connection with the smuggling of persons in the context of organized crime, as contrasted with providing humanitarian assistance or aiding close family members to enter a country without the required documents.[3]", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7322,7 +7322,7 @@ "text": "Sections 117(2) and 117(3) also support the view that Parliament’s intent was to catch smuggling activity in the context of organized crime, rather than humanitarian, mutual or family assistance. These subsections provide for significantly increased sanctions based on the number of persons brought in. This suggests a heightened focus on large-scale smuggling operations.\n\nFinally, the requirement in s. 117(4) that no prosecution occur without the Attorney General’s consent suggests that s. 117 was not intended to convict everyone who falls within s. 117(1)’s broad ambit, as discussed more fully below. (ii) Canada’s International Obligations\n\nAs a matter of statutory interpretation, legislation is presumed to comply with Canada’s international obligations, and courts should avoid interpretations that would violate those obligations. Courts must also interpret legislation in a way that reflects the values and principles of customary and conventional international law: R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292, at para. 53; Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281, at para. 34. Section 3 of the IRPA also requires that the IRPA be interpreted in a manner that complies with Canada’s international obligations, including “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b). The relevant international instruments to which Canada has subscribed should therefore shed light on the parliamentary purpose behind s. 117 of the IRPA .", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7340,7 +7340,7 @@ "text": "The provisions of the IRPA relating to the fight against the assisting of unauthorized entry of persons to Canada respond to Canada’s international commitments related to these matters in the Convention relating to the Status of Refugees, 189 U.N.T.S. 150 (“Refugee Convention”), the United Nations Convention against Transnational Organized Crime, 2225 U.N.T.S. 209, the Protocol against the Smuggling of Migrants by Land, Sea and Air, supplementing the United Nations Convention against Transnational Organized Crime, 2241 U.N.T.S. 480 (“Smuggling Protocol”), and the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime, 2237 U.N.T.S. 319.\n\nThe Refugee Convention reflects humanitarian concerns. It provides that states must not impose penalties for illegal entry on refugees who come directly from territories in which their lives or freedom are threatened and who are present on the territory of the foreign state without authorization, “provided they present themselves without delay to the authorities and show good cause for their illegal entry or presence”: art. 31(1).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7358,7 +7358,7 @@ "text": "Consistent with this, s. 133 of the IRPA provides that foreign nationals who enter Canada without documents cannot be charged with illegal entry or presence while their refugee claims are pending. As I explain in B010, art. 31(1) of the Refugee Convention seeks to provide immunity for genuine refugees who enter illegally in order to seek refuge. For that protection to be effective, the law must recognize that persons often seek refuge in groups and work together to enter a country illegally. To comply with art. 31(1), a state cannot impose a criminal sanction on refugees solely because they have aided others to enter illegally in their collective flight to safety.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7376,7 +7376,7 @@ "text": "The Smuggling Protocol is concerned with stopping the organized crime of people smuggling. It seeks to prevent and combat the smuggling of migrants and to promote cooperation among states to this end, while protecting the rights of smuggled migrants: art. 2. Article 6(1)(a) requires signatory states to adopt measures to establish migrant smuggling as a criminal offence. The Smuggling Protocol includes as a minimum definition for this offence, procuring illegal entry of a person into a state of which the person is not a national or a permanent resident, “in order to obtain, directly or indirectly, a financial or other material benefit”: art. 3(a). As I explain in B010, the Smuggling Protocol was not directed at family members or humanitarians: paras. 60 and 68. Furthermore, while the Smuggling Protocol permits subscribing states to enact national laws criminalizing migration-related offences, it includes a “saving clause” that provides that nothing in the Smuggling Protocol “shall affect the other rights, obligations and responsibilities of States and individuals under international law, including international humanitarian law and international human rights law”: art. 19(1). It would depart from the balance struck in the Smuggling Protocol to allow prosecution for mutual assistance among refugees, family support and reunification, and humanitarian aid. This suggests that the Crown’s broad interpretation of s. 117’s purpose is inconsistent with the Smuggling Protocol’s object of protecting the rights of smuggled migrants.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7394,7 +7394,7 @@ "text": "In dealing with conflicting statements of the legislative objects of a statute, the way forward lies in an interpretation which harmonizes obligations in the international instruments to which Canada is a party in a way that avoids conflict and gives expression to each of the various commitments. I conclude that read together in this way, Canada’s international commitments support the view that the purpose of s. 117 is to permit the robust fight against people smuggling in the context of organized crime. This excludes criminalizing conduct that amounts solely to humanitarian, mutual or family aid. (iii) The Role of Section 117 Within the IRPA\n\nSection 117 of the IRPA must also be read harmoniously with other provisions of the statute.\n\nSection 117 of the IRPA falls under Part 3 of the IRPA , entitled “Enforcement”. Section 117 of the IRPA and the provisions that follow it fall under the subheading “Human Smuggling and Trafficking”. Section 118 creates the offence of human trafficking, leaving s. 117, as noted, to constitute the offence of human smuggling. The only other references in the IRPA to smuggling or trafficking are contained in s. 37(1)(b), which renders inadmissible to Canada a person who has engaged in smuggling or trafficking in persons.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7412,7 +7412,7 @@ "text": "As explained in B010, the conduct captured by s. 37(1)(b) is that which is set out in the Smuggling Protocol. In that context, people smuggling only occurs for “financial or other material benefit” and “in the context of transnational crime”. Reading the inadmissibility and enforcement provisions of the IRPA harmoniously and as part of an integrated scheme therefore supports the view that the purpose of s. 117 is to penalize organizing or abetting illegal entry to Canada through acts knowingly connected to and furthering transnational organized crimes or criminal aims, to obtain, directly or indirectly, a financial or other material benefit. This excludes humanitarian, mutual or family assistance. (iv) Statements of Legislative Purpose\n\nThe first, “most direct and authoritative evidence” of the legislative purpose of a provision is found in statements of purpose in the legislation itself — whether at the beginning of a statute, in the section in which a provision is found, or in sections providing interpretive guidelines: Sullivan, at pp. 274-76.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431, at paras. 29-30, this Court held that the Refugee Convention has the broad general aim of providing humanitarian refuge for those fleeing persecution while recognizing the need to protect states’ borders.\n\nAs discussed in B010, the object provisions of the IRPA establish that both of these broad goals are important to the IRPA as well. It follows that s. 117 should be interpreted in a balanced way that respects both the security concerns as well as the humanitarian aims of the IRPA . An interpretation of s. 117 that catches all acts of assistance to undocumented migrants arguably allows security concerns to trump the humanitarian aims of the IRPA .", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7430,7 +7430,7 @@ "text": "The Crown’s view that the purpose of s. 117 is to catch all acts of assistance to undocumented migrants relies heavily on the fact that among the purposes of the IRPA is to control Canada’s borders to prevent migrants from entering the country illegally, for reasons of security, health and safety. To be sure, this is an important goal of the IRPA . It is reflected in the s. 3(2)(h) objective “to promote international justice and security by denying access to Canadian territory to persons, including refugee claimants, who are security risks or serious criminals”: see also s. 3(1)(i). It is likewise evinced by the aim “to protect the health and safety of Canadians and to maintain the security of Canadian society”: s. 3(2)(g); see also s. 3(1)(h).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7448,7 +7448,7 @@ "text": "A concern with security is also reflected in the specific legislative objects of An Act to amend the Immigration Act and the Criminal Code in consequence thereof, R.S.C. 1985, c. 29 (4th Supp.), the statute which enacted what later became s. 117 of the IRPA (the “1988 amendments”): 1. The Immigration Act is amended by adding thereto, immediately after section 2 thereof, the following heading and section: Purposes of Amendments 2.1 . . . (a) to preserve for persons in genuine need of protection access to the procedures for determining refugee claims; (b) to control widespread abuse of the procedures for determining refugee claims, particularly in light of organized incidents involving large-scale introduction of persons into Canada to take advantage of those procedures; (c) to deter those who assist in the illegal entry of persons into Canada and thereby minimize the exploitation of and risks to persons seeking to come to Canada; and (d) to respond to security concerns, including the fulfilment of Canada’s obligations in respect of internationally protected persons.\n\nThe same statute, however, also recognized humanitarian commitments, including a stated objective “to preserve for persons in genuine need of protection access to the procedures for determining refugee claims” and concern for “exploitation” and risks to persons wishing to come to Canada: s. 1, adding ss. 2.1(a) and 2.1(c).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7466,7 +7466,7 @@ "text": "The IRPA ’s general objects further illustrate the importance of its broad humanitarian aims. Section 3(2)(c) speaks of “Canada’s humanitarian ideals”. The stated objects include “saving lives and offering protection to the displaced and persecuted” and “safe haven to persons with a well-founded fear of persecution”: ss. 3(2)(a) and 3(2)(d). Similarly, the objectives include striving to comply with “international human rights instruments to which Canada is signatory”: s. 3(3)(f); see also s. 3(2)(b).\n\nThe IRPA also reveals a commitment to family, through stated objects of facilitating family reunification in Canada: s. 3(2)(f).\n\nIn sum, while the security goals of the IRPA and the amendment that became s. 117 are important, they do not supplant Canada’s commitment to humanitarian aid and family unity. Both broad aims must be respected. This is accomplished by interpreting s. 117 as targeting organized smuggling operations having a criminal dimension, thereby excluding humanitarian, mutual and family aid. Under the Crown’s interpretation of s. 117, a father offering a blanket to a shivering child, or friends sharing food aboard a migrant vessel, could be subject to prosecution. This is incompatible with the refugee protection objects of the IRPA and the amendment that became s. 117. (v) The Legislative Evolution of Section 117\n\nThe legislative history of a provision may assist in determining its purpose: Sullivan, at pp. 286-87.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7484,7 +7484,7 @@ "text": "Canada has had laws criminalizing the assisting of undocumented migrants to enter the country since 1902. Early incarnations of the offence were focused on organizing illegal arrival by rail or ship, with little concern for the plight of the migrants, who were typically expelled: An Act to amend the Immigration Act, S.C. 1902, c. 14, s. 2; Immigration Act, R.S.C. 1906, c. 93, ss. 65 and 66.\n\nIn 1919, s. 12(4) of An Act to amend The Immigration Act, S.C. 1919, c. 25, made it an offence to transport into Canada, harbour or conceal the entry of prohibited immigrants. The provision was a summary conviction offence, with a maximum penalty of six months imprisonment and/or fines. Broadly similar offences were preserved in the 1952 and 1976 iterations of the Immigration Act.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7502,7 +7502,7 @@ "text": "In 1988, “in light of organized incidents involving large-scale introduction of persons into Canada”, amendments introduced a new offence which, with minor changes, is the offence currently found in s. 117 of the IRPA : s. 1 of the 1988 amendments, adding s. 2.1(b). It criminalized third party assistance to undocumented migrants. In so doing, it established maximum penalties where the number of undocumented entrants was small: six months’ imprisonment and/or $2,000 fines on summary conviction, and five years’ imprisonment and/or $10,000 fines on indictment. By contrast, where the undocumented entrants numbered 10 or more, proceedings were exclusively by indictment, and the maximum penalty was 10 years’ imprisonment and/or fines up to $500,000: s. 9 of the 1988 amendments, adding ss. 94.1 and 94.2. Thus, at the inception of what would become s. 117, greater culpability already attached to large-scale breaches, reflecting greater organizational activity on the part of the accused or others with whom the accused acted in concert. The offence created in 1988 also included a new screening mechanism: no proceedings could be instituted under ss. 94.1 or 94.2 without the consent of the Attorney General (s. 9 of the 1988 amendments, adding s. 94.3).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7520,7 +7520,7 @@ "text": "The current s. 117 was part of a new comprehensive statute dealing with immigration and refugee protection, the IRPA , enacted in 2001. The offence remained substantially the same as previously, preserving the differing penalties based on scale, and the charge-screening mechanism. However, maximum penalties were significantly increased, while another provision was added to guide sentencing under the offence. Section 121 provided that in determining the penalty to be imposed under s. 117, the court was to take into account (1) bodily harm or death to the migrant; (2) association with a criminal organization; (3) profit from the operation; and (4) harm to or degrading treatment of the migrants. These changes came on the heels of the adoption of the Smuggling Protocol, which obliged state parties to criminalize the smuggling of migrants done for financial or other material benefit and to adopt legislative measures to establish aggravating circumstances such as harm to and degrading treatment of migrants: arts. 6(1) and 6(3). The second factor in s. 121 reflected a more significant link between the offensive conduct and organized crime. The first and fourth factors recognized more serious crime. The third factor may be an indicator of either or both.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7538,7 +7538,7 @@ "text": "From this brief survey of the historical evolution of prohibitions on assisting the entry to Canada of undocumented people, I draw the following conclusions: (a) the prohibitions have, for over a century, focused on smuggling activity tied to organizing and furthering the illegal entry, not aid merely incidental to it; (b) successive revisions to the provision have coupled increased penalties with more precise targeting of organized crime-related smuggling activity, and the 2001 revision in particular followed in the footsteps of key developments in international law; and (c) s. 117, from its inception in 1988 and as continued and revised by the IRPA in 2001, provided a filter to screen out assistance not associated with organized criminal smuggling, namely innocent humanitarian acts, mutual aid and assistance to family members. (vi) The Parliamentary Debates\n\nStatements made in the legislature leading up to the enactment of a provision may supply evidence of its purpose: Sullivan, at p. 277; Application under s. 83.28 of the Criminal Code (Re), 2004 SCC 42, [2004] 2 S.C.R. 248, at para. 37; Global Securities Corp. v. British Columbia (Securities Commission), 2000 SCC 21, [2000] 1 S.C.R. 494, at para. 25; R. v. Gladue, [1999] 1 S.C.R. 688, at para. 45; Reference re Firearms Act (Can.), 2000 SCC 31, [2000] 1 S.C.R. 783, at para. 17.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7556,7 +7556,7 @@ "text": "The parliamentary debates establish that the original enactment of the offence in 1988 was motivated by incidents of organized large-scale smuggling of undocumented migrants by sea. Concerns were expressed in the debates about protecting the health, safety and security of Canadians and Canadian society, the integrity and efficacy of Canada’s lawful immigration and refugee regimes, and Canada’s ability to control its borders and the domestic and international interests tied to them. Concerns were also expressed about the safety and protection of genuine refugees, and not subjecting humanitarian groups to prosecution. Then-Minister Benoît Bouchard summarized Parliament’s purpose as follows in the Committee meetings of August 25, 1987: We are going to put a stop to the large-scale trafficking of illegal migrants by smugglers. There has been much discussion about amending these sections of the bill. We have all pressed lawyers and legislative drafters to consider alternatives to the current wording. We looked at phrases such as religious group, profit, reward, smuggle and clandestine entry, but every possibility creates loopholes and undermines our ability to prosecute the unscrupulous. We cannot let such individuals escape sanction by adding phrases which create insurmountable problems of proof and create gaps through which the unscrupulous would march. (House of Commons, Minutes of Proceedings and Evidence of the Legislative Committee on Bill C-84, No. 9, 2nd Sess., 33rd Parl., at p. 24)", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7574,7 +7574,7 @@ "text": "It thus emerges from the 1987 debates that the reason s. 117(1) of the IRPA permits prosecution of those providing humanitarian assistance to fleeing refugees or assistance to close family members is not because Parliament wanted to capture such persons, but because of a drafting dilemma — it was feared that a categorical approach to exceptions would inadequately respond to the multi-faceted and complex nature of real-life smuggling cases. Parliament agreed that those offering humanitarian assistance and mutual aid were not meant to be prosecuted under s. 117 of the IRPA . However, instead of legislatively exempting such people from potential criminal liability, it sought to screen them out at the prosecution stage by requiring the Attorney General’s consent to prosecute.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7592,7 +7592,7 @@ "text": "The debates on the enactment of the IRPA in 2001 echo these preoccupations. Again, members of Parliament expressed concerns that s. 117 might criminalize people who assist family members to come to Canada or people who provide humanitarian aid to asylum-seekers. The government’s response was that these fears were misplaced because they focused exclusively on s. 117(1) and overlooked s. 117(4) which was expected to prevent these and other unintended prosecutions. The following excerpts from the parliamentary debates summarize those discussions: Mr. John McCallum: . . . we heard a fair amount of testimony in our hearings from people doing humanitarian work, reverends and saintly people, if you will, and the last people in the world we would want to prosecute. Yet, if you read that literally, it looks like some of these people who are helping refugees could be prosecuted. Or if my sister is in a bad country and I help her, it looks like I can be prosecuted. How does that work? Mr. Daniel Therrien [General Counsel]: The protection against such prosecutions is in subclause 117(4), which provides that no prosecution under the smuggling provision can occur without the consent of the Attorney General . . . . . . . Ms. Joan Atkinson [Assistant Deputy Minister]: . . . Subclause 117(4) is what’s in the current act. . . . It is in place . . . in the current act, and as Daniel has said, there has been no prosecution of anyone who was involved in trying to help refugees come to Canada. That is the safeguard. All the circumstances will be reviewed by the Attorney General to put in humanitarian considerations without defining what that means [otherwise] you don’t have the flexibility you need . . .", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7610,7 +7610,7 @@ "text": "to be able to consider all the individual circumstances in a case before any decision is taken to prosecute. (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 27, 1st Sess., 37th Parl., May 17, 2001 (online), at 10:35)\n\nThese excerpts from the parliamentary debates make it clear that Parliament understood that s. 117(1) criminalized assistance to family members and humanitarian assistance, and was relying on ministerial discretion to prevent prosecution. General Counsel Therrien and Assistant Deputy Minister Atkinson did not deny that s. 117 caught these cases, but defended this overreach far beyond any reasonable definition of the targeted smuggling activity on the basis that the Attorney General’s permission under s. 117(4) would be an adequate “safeguard” against inappropriate prosecutions.\n\nIn sum, we may fairly infer the following from the debate surrounding the adoption of s. 117 of the IRPA : From the beginning, the government conceded that the words of s. 117(1) had been cast broadly enough to catch family and humanitarian assistance to undocumented migrants. At the same time, the government made it clear that s. 117 was not intended to catch persons aiding family members or providing humanitarian or mutual aid. The risk would be alleviated, or so the government asserted, by the requirement that the Attorney General authorize prosecutions under s. 117(4) of the IRPA . (vii) Conclusion on the Purpose of Section 117 of the IRPA", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7628,7 +7628,7 @@ "text": "The foregoing considerations establish that the purpose of s. 117 is to criminalize the smuggling of people into Canada in the context of organized crime, and does not extend to permitting prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada. A broad punitive goal that would prosecute persons with no connection to and no furtherance of organized crime is not consistent with Parliament’s purpose as evinced by the text of s. 117 read together with Canada’s international commitments, s. 117’s role within the IRPA , the IRPA ’s objects, the history of s. 117, and the parliamentary debates. (b) The Scope of Section 117 of the IRPA\n\nI now turn to the scope of s. 117 of the IRPA to see whether it “goes too far and interferes with some conduct that bears no connection to its objective”: Bedford, at para. 101.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7646,7 +7646,7 @@ "text": "The scope of s. 117(1) is plain. The provision admits of no ambiguity. Parliament itself understood when it enacted s. 117 that the provision’s reach exceeded its purpose by catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada, but argued that this overbreadth was not a problem because the Attorney General would not permit the prosecution of such people. We cannot avoid the overbreadth problem by interpreting s. 117(1) as not permitting prosecution of persons providing humanitarian, mutual or family assistance. Such an interpretation would require the Court to ignore the ordinary meaning of the words of s. 117(1), which unambiguously make it an offence to “organize, induce, aid or abet” the undocumented entry. To adopt this suggestion would violate the rule of statutory interpretation that the meaning of the words of the provision should be read in their “grammatical and ordinary sense”: Sullivan, at p. 28. It would also require us to ignore statements from the legislative debate record suggesting Parliament knew in advance that the provision was overbroad.\n\nI conclude that s. 117(1) appears to criminalize some conduct that bears no relation to its objective, raising the spectre that s. 117 as a whole is overbroad. The remaining question is whether the requirement under s. 117(4) that the Attorney General authorize prosecution saves s. 117 from the charge or overbreadth by effectively narrowing the scope of s. 117(1).", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7664,7 +7664,7 @@ "text": "In my view, s. 117(4) does not cure the overbreadth problem created by s. 117(1). Ministerial discretion, whether conscientiously exercised or not, does not negate the fact that s. 117(1) criminalizes conduct beyond Parliament’s object, and that people whom Parliament did not intend to prosecute are therefore at risk of prosecution, conviction and imprisonment. So long as the provision is on the books, and so long as it is not impossible that the Attorney General could consent to prosecute, a person who assists a family member or who provides mutual or humanitarian assistance to an asylum-seeker entering Canada faces a possibility of imprisonment. If the Attorney General were to authorize prosecution of such an individual, despite s. 117’s limited purpose, nothing remains in the provision to prevent conviction and imprisonment. This possibility alone engages s. 7 of the Charter . Further, as this Court unanimously noted in R. v. Anderson, 2014 SCC 41, [2014] 2 S.C.R. 167, at para. 17, per Moldaver J., “prosecutorial discretion provides no answer to the breach of a constitutional duty”. See also Nur.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7682,7 +7682,7 @@ "text": "Implicit in the Court of Appeal’s position is that the problem of humanitarian workers or family members prosecuted under s. 117 of the IRPA is a problem of administrative law, and that if a constitutional attack is to be made, it should be made against improper exercise of the Attorney General’s duty under s. 117(4) not to prosecute such persons. I cannot agree. As noted, although the purpose of s. 117 of the IRPA was not to capture such persons, nothing in the provision actually enacted disallows it. As a result, an individual charged with an offence under s. 117 would have difficulty challenging the decision. Further, judicial review of such discretion is not currently available, and there are good reasons why it may not be desirable. As the Court observed in Anderson, judicial oversight of Crown decisions whether to prosecute puts at risk the discrete roles of different actors in our adversarial system: There has been a long-standing and deeply engrained reluctance to permit routine judicial review of the exercise of [prosecutorial] discretion. . . . The imposition of a sweeping duty that opens up for routine judicial review all of the aforementioned decisions is contrary to our constitutional traditions. [para. 32]", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7700,7 +7700,7 @@ "text": "It may also be noted that judicial review of the Attorney General’s decision to authorize prosecution under s. 117(4) may have undesirable consequences for other federal statutes in which a similar clause is present: see e.g. Freezing Assets of Corrupt Foreign Officials Act , S.C. 2011, c. 10 ; Foreign Extraterritorial Measures Act , R.S.C. 1985, c. F-29 ; Special Economic Measures Act , S.C. 1992, c. 17 ; Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 ; Geneva Conventions Act , R.S.C. 1985, c. G-3 . At this point, it suffices to note that judicial review does not answer the constitutional non-conformity of s. 117(1).\n\nI conclude that s. 117 of the IRPA is overbroad. The remaining issue is whether this overbreadth is justified under s. 1 of the Charter as a reasonable measure in a free and democratic society. (2) Gross Disproportionality, Vagueness and Equality\n\nIn addition to the overbreadth claim, some of the appellants assert that s. 117 offends s. 7 by depriving persons of liberty in a manner that violates the principles of fundamental justice against gross disproportionality and vagueness. They also claim that equal treatment under the law is a principle of fundamental justice within the meaning of s. 7, and that s. 117 violates it. In view of my conclusion that s. 117 is overbroad, I find it unnecessary to consider these arguments. B. Is the Inconsistency With Section 7 Justified Under Section 1 of the Charter ?", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7718,7 +7718,7 @@ "text": "The test to determine whether infringement of a right may be constitutionally justified under s. 1 of the Charter was set out in R. v. Oakes, [1986] 1 S.C.R. 103. The first step of the s. 1 analysis asks whether the Crown has demonstrated a pressing and substantial objective: Oakes, at pp. 138-39. The broad purpose of s. 117 of the IRPA is to combat organized crime-related people smuggling, without criminalizing family assistance, mutual aid or humanitarian aid to asylum-seekers coming to Canada. This objective is clearly pressing and substantial.\n\nThe second step of the s. 1 analysis asks whether the legislative objective is rationally connected to the limit the law imposes on the right at issue. Not all applications of s. 117 are rationally connected to the legislative object; notably, s. 117 of the IRPA , as discussed, catches mutual and family as well as humanitarian aid which I earlier concluded was not Parliament’s object to criminalize. However, since other applications of s. 117 are rationally connected to the legislative object, this suffices to satisfy the rational connection stage of the analysis: Heywood, at p. 803. A rational connection, not a complete rational correspondence, is all this branch of Oakes requires.\n\nThe third step of the s. 1 analysis asks whether the offending law is tailored to its objective: R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713. Evidently, where a law goes too far, it is a challenge to satisfy minimal impairment. In Heywood, Cory J. concluded (at p. 803) that “for the same reasons that [the law] is overly broad, it fails the minimal impairment branch of the s. 1 analysis”. The record here shows why that will not always necessarily be the case.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7736,7 +7736,7 @@ "text": "The Crown’s position appears to be that even though the provision is overbroad, it is nevertheless minimally impairing, because although imperfect, there was no better alternative. As discussed, the government recognized in advance that the provision would catch conduct it did not intend to criminalize. However, Parliament nevertheless enacted an overbroad provision because it was concerned that wording exempting this conduct would create unacceptable loopholes. Section 1 of the Charter does not allow rights to be limited on the basis of bare claims, but requires the Crown to provide a demonstrable justification for inconsistencies with Charter rights: Oakes, at pp. 136-37. The Crown has not satisfied its burden under s. 1. VI. Remedy\n\nSection 52(1) of the Constitution Act, 1982 provides: 52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect. It follows that s. 117 is of no force or effect to the extent of its inconsistency with the Charter .\n\nThe extent of the inconsistency that has been proven is the overbreadth of s. 117 in relation to three categories of conduct: (1) humanitarian aid to undocumented entrants, (2) mutual aid amongst asylum-seekers, and (3) assistance to family entering without the required documents.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7754,7 +7754,7 @@ "text": "The appellants ask the Court to strike s. 117 down in its entirety. Section 117, as it was at the time of the alleged offences, has been replaced. In the particular circumstances of this case, I conclude that the preferable remedy is to read down s. 117 as not applicable to persons who give humanitarian, mutual or family assistance. This remedy reconciles the former s. 117 with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place. This remedy is consistent with the guidance this Court gave in Schachter v. Canada, [1992] 2 S.C.R. 679. VII. Conclusion\n\nI would allow the appeals and read down s. 117 of the IRPA , as it was at the time of the alleged offences, as not applying to persons providing humanitarian aid to asylum-seekers or to asylum-seekers who provide each other mutual aid (including aid to family members), to bring it in conformity with the Charter . The charges are remitted for trial on this basis.", "current_to": "2015-11-27", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 754", + "history": "[2015] 3 SCR 754", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15648/index.do" }, { @@ -7772,7 +7772,7 @@ "text": "The issue in this case is whether Luis Alberto Hernandez Febles is ineligible for refugee protection because of crimes committed before he came to Canada. Mr. Febles was admitted to the United States as a refugee from Cuba. While living in the United States, he was convicted and served time in prison for two assaults with a deadly weapon — in the first case, he struck a roommate on the head with a hammer, and in the second, he threatened to kill a roommate’s girlfriend at knifepoint. The U.S. revoked his refugee status and issued a removal warrant, which is still outstanding.\n\nAfter his refugee status in the U.S. was revoked, Mr. Febles fled to Canada, entering illegally. He now claims refugee protection in Canada. The question is whether Article 1F(b) (the “serious criminality” exclusion) of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), incorporated in Canada by s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), bars him from refugee protection because of the crimes he committed in the past.\n\nEssentially, different interpretations of Article 1F(b) of the Refugee Convention are in contention. The Minister of Citizenship and Immigration (“Minister”) says that the Article 1F(b) serious criminality exclusion is triggered whenever the refugee claimant has committed a serious non-political crime before coming to Canada. It is not confined to fugitives from justice. Nor are post-crime events, like rehabilitation or expiation, relevant, in the Minister’s view. The only question is whether the claimant committed a serious non-political crime before seeking refugee protection in Canada.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7790,7 +7790,7 @@ "text": "Mr. Febles and the United Nations High Commissioner for Refugees (“UNHCR”) advocate narrower interpretations of Article 1F(b). Mr. Febles argues that the exclusion in Article 1F(b) is confined to fugitives from justice (which Mr. Febles, having served his sentences, is not). The UNHCR (with whom Mr. Febles agrees) argues that the question is whether the refugee claimant is “deserving” of refugee protection at the time of the application, which requires consideration not only of the seriousness of the offence itself, but of how long ago the offence was committed, the conduct of the claimant since the commission of the offence, whether the claimant has expressed regret or renounced criminal activities, and whether the claimant poses a threat to the security of Canada at the present time.\n\nIn a nutshell, the Minister says that serious criminality under Article 1F(b) is simply a matter of looking at the seriousness of the crime when it was committed, while Mr. Febles and the UNHCR say it requires consideration of other matters — whether the claimant is a fugitive and/or his current situation, including rehabilitation, expiation and current dangerousness.\n\nFor the reasons that follow, I agree with the conclusion of the Immigration and Refugee Board (“Board”), upheld in the courts below, that only factors related to the commission of the criminal offences can be considered, and whether those offences were serious within the meaning of Article 1F(b). On this interpretation of Article 1F(b), Mr. Febles does not qualify for refugee protection because of the serious crimes he committed in the U.S. before seeking admission to Canada as a refugee. II. The Statutory Scheme", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7808,7 +7808,7 @@ "text": "Refugee protection claims in Canada are adjudicated by the Board under the IRPA . Three procedures under the IRPA are relevant to the present appeal.\n\nThe first procedure (ss. 100 to 102 of the IRPA ) determines whether a claim for refugee protection is eligible for referral to the Board. At the time of Mr. Febles’ application, ss. 101(1)(f) and 101(2)(b) provided that a claim was ineligible to be referred to the Board if the claimant had been convicted of an offence outside Canada, where the same offence in Canada is punishable by a maximum term of imprisonment of at least ten years, and the claimant represented a danger to the public in the Minister’s opinion. This procedure did not bar Mr. Febles’ claim for refugee protection because the Minister did not file an opinion of dangerousness.\n\nThe second procedure (ss. 95 to 98 of the IRPA ) determines whether a claimant is entitled to refugee protection. Section 98 — the provision at issue here — requires the Board to reject a refugee protection claim by any person referred to in Articles 1E or 1F of the Refugee Convention. Article 1F(b) of the Refugee Convention provides that a person with respect to whom there are serious reasons for considering that “he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee” is excluded from the protection of the Refugee Convention. Interpretation of the meaning of that article is the primary issue in this case.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7826,7 +7826,7 @@ "text": "Finally, even where a refugee protection claim is rejected by application of s. 98 and a removal order is issued, a claimant may still apply to the Minister for protection against a removal order. In determining whether to stay the removal order, the Minister must balance any danger to the public in Canada against the risk that a claimant would face death, torture or cruel and unusual treatment or punishment if removed from Canada to the place designated in the removal order (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). III. Analysis A. Interpretation of a Canadian Statute That Incorporates an International Treaty\n\nParliament has incorporated Articles 1E and 1F of the Refugee Convention into s. 98 of the IRPA . Interpretation of an international treaty that has been directly incorporated into Canadian law is governed by Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (“Vienna Convention”): Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at paras. 51-52; Thomson v. Thomson, [1994] 3 S.C.R. 551, at pp. 577-78. It follows that the meaning of the incorporated Articles of the Refugee Convention must be determined in accordance with the Vienna Convention.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7844,7 +7844,7 @@ "text": "Articles 31 and 32 of the Vienna Convention set out the principles of treaty interpretation which are similar to general principles of statutory interpretation: Article 31. General rule of interpretation 1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. 2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes: (a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty; (b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty. 3. There shall be taken into account, together with the context: (a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions; (b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation; (c) Any relevant rules of international law applicable in the relations between the parties. 4. A special meaning shall be given to a term if it is established that the parties so intended. Article 32.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7862,7 +7862,7 @@ "text": "Supplementary means of interpretation Recourse may be had to supplementary means of interpretation, including the preparatory work of the treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the application of article 31, or to determine the meaning when the interpretation according to article 31: (a) Leaves the meaning ambiguous or obscure; or (b) Leads to a result which is manifestly absurd or unreasonable. B. The Scope of Article 1F(b) of the Refugee Convention\n\nArticle 1F(b) excludes any person from refugee protection “with respect to whom there are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.\n\nDespite its facial clarity, the meaning of the phrase “has committed a serious non-political crime” is the subject of debate by courts and academic writers. While there are many variations of these debates, the main issue in the present case is whether “has committed a serious . . . crime” is confined to matters relating to the crime committed, or should be read as also referring to matters or events after the commission of the crime, such as whether the claimant is a fugitive from justice or is unmeritorious or dangerous at the time of the application for refugee protection. If Article 1F(b) is read as including consideration of matters occurring after the commission of the crime, people who have committed a serious crime in the past may nevertheless qualify as refugees because they have served their sentence or because of redeeming conduct subsequent to the crime.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7880,7 +7880,7 @@ "text": "Article 31(1) of the Vienna Convention states how interpretation of the Refugee Convention should be approached — by considering: (1) the “ordinary meaning” of its terms; (2) the context; and (3) the object and purpose of the Refugee Convention. For the reasons that follow, these considerations, as well as the Collected Travaux Préparatoires of the 1951 Geneva Convention Relating to the Status of Refugees (1989), vol. III (“Travaux préparatoires”) and the jurisprudence, lead me to conclude that the phrase “has committed a serious . . . crime” refers to the crime at the time it was committed. Article 1F(b), in excluding from refugee protection people who have committed serious crimes in the past, does not exempt from this exclusion persons who are not fugitives from justice, or because of their rehabilitation, expiation or non-dangerousness at the time they claim refugee protection. (1) The Ordinary Meaning of Article 1F(b)\n\nThe point of departure for interpreting a provision of a treaty is the plain meaning of the text. As the House of Lords put it in Januzi v. Secretary of State for the Home Department, [2006] UKHL 5, [2006] 2 A.C. 426, at para. 4: “. . . the starting point of the construction exercise must be the text of the Convention itself . . ., because it expresses what the parties to it have agreed. The parties to an international convention are not to be treated as having agreed something they did not agree, unless it is clear by necessary implication from the text . . .”.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7898,7 +7898,7 @@ "text": "The ordinary meaning of the terms used in Article 1F(b) — “has committed a serious . . . crime outside the country of refuge prior to his admission to that country” — refers only to the crime at the time it was committed. The words do not refer to anything subsequent to the commission of the crime. There is nothing in the text of the provision suggesting that it only applies to fugitives, or that factors such as current lack of dangerousness or post-crime expiation or rehabilitation are to be considered or balanced against the seriousness of the crime.\n\nThe mandatory wording of the Article (“shall not apply”) chosen by the parties to the Refugee Convention unequivocally supports the view that all a subscribing country can consider in determining whether a claimant is excluded under Article 1F(b) is whether the claimant committed a serious crime outside the country of refuge prior to applying for refugee status there. Nothing in the words used suggests that the parties to the Refugee Convention intended subsequent considerations, like rehabilitation, expiation and actual dangerousness, to be taken into account. (2) The Context\n\nThe second interpretive consideration is the context. The immediate context of Article 1F(b) is Article 1F as a whole. Article 1F is comprised of three provisions, each of which excludes certain classes of persons from the Refugee Convention’s protection. Article 1F(a) excludes anyone who has “committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(c) excludes anyone “guilty of acts contrary to the purposes and principles of the United Nations”.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7916,7 +7916,7 @@ "text": "Mr. Febles argues that this context suggests that Article 1F(b) is limited to fugitives. He appears to concede that Articles 1F(a) and 1F(c) are not themselves limited to fugitives, and that they operate to exclude all persons who have committed the acts listed in those provisions. Nevertheless, he argues that limiting Article 1F(b) to fugitives would not be incongruous. He submits that, unlike Article 1F(b), Articles 1F(a) and 1F(c) are designed to prevent people who are themselves persecutors from seeking protection from persecution, and that it would undermine the Refugee Convention’s viability if persecutors who create refugees could seek refugee protection. Persons who have committed serious crimes under Article 1F(b) are in a different situation, Mr. Febles argues. It would not undermine the Refugee Convention’s viability to allow non-fugitives who have already served sentences for standard crimes to seek refugee protection. On this basis, he invites this Court to confine Article 1F(b) to fugitives from justice.\n\nAgainst this, the Minister argues that the word “committed” should be given the same meaning in Articles 1F(a) and 1F(b): these provisions apply to anyone who has ever committed the offences, not only to fugitives or some other subset of those persons who have in fact committed the described offences.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7934,7 +7934,7 @@ "text": "I agree. I cannot accept Mr. Febles’ argument that Articles 1F(a) and 1F(c) support the view that the exclusion from refugee protection under Article 1F(b) is confined to fugitives. There is nothing in the wording of these provisions or in the jurisprudence to support this contention. (See Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, at paras. 38 and 101, and Pushpanathan, at paras. 65-66 and 70 where the scope of these articles is discussed.) While Article 1F(c) uses the word “guilty”, Articles 1F(a) and 1F(b) both use the word “committed”.\n\nThe immediate context therefore supports the Minister’s interpretation. It would be anomalous if the word “committed” were ascribed different meanings in Articles 1F(a) and 1F(b) and the use of consistent language in these two articles was meant to evince an intention on the part of the drafters that they be applied inconsistently. As nobody has suggested that Article 1F(a) is confined to fugitives, it follows that Article 1F(b) would similarly not be restricted to fugitives.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7952,7 +7952,7 @@ "text": "Mr. Febles also says that Article 33(2) of the Refugee Convention supports the view that Article 1F(b) is confined to fugitives. Article 33(2) allows a host country to expel a refugee who has been “convicted by a final judgment of a particularly serious crime” and “constitutes a danger to the community of that country”. As far as Refugee Convention provisions go, Article 1F(b) only applies to crimes committed outside the country of refuge, whereas a refugee who commits a crime in the country of refuge can only be expelled under Article 33(2). Mr. Febles argues that this results in an absurdity. Why should someone who has served his sentence for a crime committed outside the country of refuge be automatically disentitled to refugee protection, when someone who commits a serious crime inside the country of refuge is allowed to retain refugee protection absent a danger to the public? This apparent absurdity disappears, Mr. Febles says, if Article 1F(b) is read as being restricted to fugitives.\n\nAgain, the argument fails to persuade. Article 33(2) is an exception to the Article 33(1) principle of non-refoulement of persons whose need for protection has been recognized (or not yet adjudicated). That is why the drafters used different language in Article 33(2) than they did in Article 1F(b): Article 33(2) allows persons to nevertheless be removed in the exceptional circumstances it describes, including in the event of particularly serious crimes, and “danger to the community”.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7970,7 +7970,7 @@ "text": "That the Refugee Convention drafters intended that persons who commit crimes in the country of refuge be treated differently than those who commit crimes outside the country of refuge prior to claiming refugee protection makes sense. When a person commits a crime inside the country of refuge, the country of refuge is called to rely on its own sovereign legal system, rather than on an international treaty. In Canada’s case, it has done so by enacting a parallel and virtually identical provision regarding the effect of commission of a crime: s. 101(2) (a) of the IRPA specifies that a refugee protection claim cannot be made in the event “of a conviction in Canada [where] the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years”. Therefore, the discrepancy and resultant absurdity contended by Mr. Febles do not exist. In any event, different concerns arise when a country is asked to take in claimants who have committed crimes abroad, and the context provided by Article 33(2) of the Refugee Convention does not aid in the interpretive task at hand. (3) The Object and Purpose of the Refugee Convention (a) The Refugee Convention as a Whole\n\nThe purposes of the Refugee Convention include the international community’s “profound concern for refugees” and commitment to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms”: see Ezokola, at para. 32, and Pushpanathan, at para. 57. While Article 1F(b) has a more specific exclusionary purpose, that purpose must be consistent with the broader protective aims of the Refugee Convention.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -7988,7 +7988,7 @@ "text": "Mr. Febles argues that broad construction of exclusion provisions risks subverting the Refugee Convention’s humanitarian aims — courts should accordingly construe exclusion provisions as narrowly as is possible while still preserving the viability of the Refugee Convention.\n\nThe problem with this approach is that it risks upsetting the balance between humane treatment of victims of oppression and the other interests of signatory countries, which they did not renounce simply by together making certain provisions to aid victims of oppression. The Refugee Convention is not itself an abstract principle, but an agreement among sovereign states in certain specified terms, negotiated by them in consideration of the entirety of their interests. In R. (European Roma Rights Centre) v. Immigration Officer at Prague Airport, [2004] UKHL 55, [2005] 2 A.C. 1, the U.K. House of Lords stated that the Refugee Convention “represent[s] a compromise between competing interests, in this case between the need to ensure humane treatment of the victims of oppression on the one hand and the wish of sovereign states to maintain control over those seeking entry to their territory on the other” (para. 15).\n\nI agree with this statement of the Refugee Convention’s twin purposes. While exclusion clauses should not be enlarged in a manner inconsistent with the Refugee Convention’s broad humanitarian aims, neither should overly narrow interpretations be adopted which ignore the contracting states’ need to control who enters their territory. Nor do a treaty’s broad purposes alter the fact that the purpose of an exclusion clause is to exclude. In short, broad purposes do not invite interpretations of exclusion clauses unsupported by the text.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8006,7 +8006,7 @@ "text": "For these reasons, I conclude that consideration of the purposes of the Refugee Convention as a whole do not support Mr. Febles’ argument that Article 1F(b) is confined to fugitives. (b) Article 1F(b)\n\nThis brings me to the purpose of Article 1F(b) itself. Mr. Febles argues that the main rationale for Article 1F(b) is the exclusion of fugitives (although he allows for the possibility that Article 1F(b) may apply to non-fugitives in certain rare circumstances where the crimes at issue are especially heinous and contribute to the creation of refugees). It follows, he says, that since Article 1F(b) is directed at preventing fugitives from evading justice, it should generally have no application to persons who have already served their sentences for prior crimes. Mr. Febles relies on obiter dicta of this Court in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, and Pushpanathan that Article 1F(b) is directed at the exclusion of fugitives.\n\nThe Minister counters that the main rationale for Article 1F(b) is the exclusion of serious criminals because persons who have committed serious offences are by definition undeserving of refugee protection, supported by a secondary rationale of protection of the host society. By the Minister’s interpretation, determination of a crime’s seriousness 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, but does not include post-offence considerations. A person who commits a serious non-political crime is forever barred from claiming refugee protection. This interpretation was adopted by the courts below, and was recently endorsed by the European Court of Justice.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8024,7 +8024,7 @@ "text": "The UNHCR argues that Article 1F(b) has two purposes — exclusion of fugitives and exclusion of claimants undeserving of refugee protection at the time it is claimed. If a person has committed a crime within the scope of Article 1F(b), but has since served a sentence commensurate with that criminal conduct or has been otherwise rehabilitated, the decision maker on the refugee application must in each case determine whether such a person is deserving of refugee protection at that time, having regard to: the passage of time since the commission of the offence; the seriousness of the offence (and whether it can be characterized as “truly heinous”); the age at which the person committed the crime; the conduct of the individual since then; whether the individual has expressed regret or renounced criminal activities; and whether the individual poses a threat to the community or security of the receiving state. Justice Abella similarly suggests that for all but “very” serious crimes, expiation and rehabilitation must be considered (para. 74).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8042,7 +8042,7 @@ "text": "I cannot accept the arguments of Mr. Febles and the UNHCR on the purposes of Article 1F(b). I conclude that Article 1F(b) serves one main purpose — to exclude persons who have committed a serious crime. This exclusion is central to the balance the Refugee Convention strikes between helping victims of oppression by allowing them to start new lives in other countries and protecting the interests of receiving countries. Article 1F(b) is not directed solely at fugitives and neither is it directed solely at some subset of serious criminals who are undeserving at the time of the refugee application. Rather, in excluding all claimants who have committed serious non-political crimes, Article 1F(b) expresses the contracting states’ agreement that such persons by definition would be undeserving of refugee protection by reason of their serious criminality.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8060,7 +8060,7 @@ "text": "Excluding people who have committed serious crimes may support a number of subsidiary rationales — it may prevent people fleeing from justice; it may prevent dangerous and particularly undeserving people from entering the host country. However, Article 1F(b) cannot be confined to any of these subsidiary purposes. Excluding people who have committed crimes in other countries prior to seeking refugee protection may serve other state interests. It may help preserve the integrity and legitimacy of the refugee protection system, and, hence, the necessary public support for its viability. It may deter states from exporting criminals by pardoning them or imposing disproportionately lenient sentences while supporting their departure elsewhere as refugees. Finally, it may allow states to reduce the danger to their society from all serious criminality cases taken together, given the difficult task and potential for error when attempting to determine whether criminals from abroad (on whom they have more limited sources of information than on domestic criminals) are no longer dangerous. Whatever rationales for Article 1F(b) may or may not exist, its purpose is clear in excluding persons from protection who previously committed serious crimes abroad. (4) The Travaux Préparatoires\n\nBesides the arguments already addressed, Mr. Febles argues that the Travaux préparatoires to the Refugee Convention (the working documents preceding the Refugee Convention’s adoption) support his view that Article 1F(b) is confined to fugitives. Acknowledging that the Travaux préparatoires “do not provide any ‘hard answers’”, he nonetheless says that they generally support this inference.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8078,7 +8078,7 @@ "text": "As discussed, Article 31(1) of the Vienna Convention provides for interpretation of treaty provisions in accordance with the ordinary meaning of the terms in their context and in light of the treaty’s object and purpose. Article 32 only allows for recourse to “supplementary means of interpretation” — including the Travaux préparatoires — in order to confirm the meaning resulting from the application of Article 31, or to determine the meaning when the interpretation according to Article 31 leaves the meaning ambiguous or obscure; or leads to a result which is manifestly absurd or unreasonable.\n\nThese conditions for use of the Travaux préparatoires are not present in this case. With great respect to Justice Abella’s contrary view, the meaning of Article 1F(b) is clear, and admits of no ambiguity, obscurity or absurd or unreasonable result. Therefore, the Travaux préparatoires should not be considered.\n\nIn any event, the Travaux préparatoires support the Minister’s interpretation rather than Mr. Febles’ reading of Article 1F(b). In the case B (Area of Freedom, Security and Justice) (2008), BVerwG 10 C 48.07, OVG 8 A 2632/06.A, both the German Federal Administrative Court and the European Court of Justice, Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, reviewed the Travaux préparatoires and concluded that the aim of the drafters was to protect the dignity of refugee status by excluding serious criminals from such status. The Court of Appeal in this case similarly concluded that “it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice” (2012 FCA 324, 442 N.R. 290, at para. 62).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8096,7 +8096,7 @@ "text": "Mr. Febles points to statements made by certain delegates that he says support his interpretation when taken in context, but on a review of the Travaux préparatoires as a whole, no concluded intention to that effect emerges. Indeed, the French delegate stressed the need to distinguish between bona fide refugees and non-political criminals, and added that “refugees whose actions might bring discredit on that status” should be excluded (Travaux préparatoires, U.N. Doc. A/CONF.2/SR.29, at p. 19).\n\nAccordingly, I conclude that the Travaux préparatoires do not assist Mr. Febles’ position. (5) The Case Law on Article 1F(b)\n\nCourts around the world have suggested various rationales for the inclusion of Article 1F(b) in the Refugee Convention and have interpreted the provision in different ways. While the jurisprudence is inconclusive as to the precise scope and all of the rationales, there is agreement that Article 1F(b) is not limited to fugitives. After reviewing the foreign jurisprudence, I conclude that the interpretation adopted by the German Federal Administrative Court and the European Court of Justice, that Article 1F(b) excludes anyone who has previously committed a serious non-political crime, is the most consistent with both the prevailing trend in the case law and the text of the provision.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8114,7 +8114,7 @@ "text": "I will first consider this Court’s obiter dicta in Ward and Pushpanathan to the extent that these are read as suggesting that Article 1F(b) is confined to fugitives. I will then review the international and Federal Court jurisprudence. A review of the jurisprudence demonstrates the difficulty of confining Article 1F(b) to a narrow category of people, like fugitives from justice, and confirms that it applies, as its words suggest, to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nIn Ward, the Court was concerned with what the meaning is of “membership in a particular social group or political opinion”, corresponding to the terms of Article 1A(2) of the Refugee Convention. In obiter, La Forest J. made this brief comment regarding Article 1F(b): Hathaway would appear to confine paragraph (b) to accused persons who are fugitives from prosecution. The interpretation of this amendment was not argued before us. I note, however, that Professor Hathaway’s interpretation seems to be consistent with the views expressed in the Travaux préparatoires, regarding the need for congruence between the Convention and extradition law . . . . [p. 743]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8132,7 +8132,7 @@ "text": "The most that can be said of this comment is that La Forest J., noting that the issue had not been argued, tentatively accepted the view of Professor Hathaway that Article 1F(b) was confined to fugitives, on the basis that it seemed to be consistent with certain statements found in the Travaux préparatoires. As noted earlier in these reasons, the Travaux préparatoires should not be relied on in interpreting Article 1F(b). Nor, looking at them in their totality, beyond the particular comments referred to by La Forest J. with respect to extradition law, do the Travaux préparatoires support the view that Article 1F(b) is confined to fugitives. Earlier in his Ward reasons, La Forest J. explicitly recognized the rationale of a concern to keep out criminal claimants, and the fact that Canada had amended its legislation to better serve that purpose: In the amended Immigration Act, R.S.C., 1985, c. I-2, Parliament has further responded to the concern of keeping out dangerous and criminal claimants by excluding from the definition of “Convention refugee” in s. 2 of the Act any person to whom the Convention does not apply pursuant to section E or F of Art. 1 . . . . [p. 742]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8150,7 +8150,7 @@ "text": "In Pushpanathan, this Court was concerned not with Article 1F(b), but with Article 1F(c), which excludes from protection those guilty of crimes contrary to the purposes and principles of the United Nations. Bastarache J., discussing the potential for overlap between Articles 1F(b) and 1F(c), suggested in obiter that Article 1F(b) was limited to “ordinary criminals extraditable by treaty” (para. 73). Bastarache J. gave no reasons for interpreting the clause as limited to extraditable fugitives, and the only authority cited at that section of the reasons is Professor G. S. Goodwin-Gill’s The Refugee in International Law (2nd ed. 1996). Under the heading The drafting history of article 1F(b), Goodwin-Gill’s text contains a phrase identical to that used by Bastarache J.: “The IRO Constitution excluded refugees who were ‘ordinary criminals . . . extraditable by treaty’” (p. 101 (emphasis added)).\n\nIt may therefore bear note that the more recent version of Professor Goodwin-Gill and J. McAdam’s text (The Refugee in International Law (3rd ed. 2007)), under the title The relation to extradition, observes as follows: . . . the “fugitives from justice” thesis appears to be on the wain, as being inconsistent with the ordinary meaning of the words. It is one thing to say that those seeking to escape prosecution for serious non-political crimes should not be recognized as refugees; but quite another to say that only such fugitives come within the scope of article 1F(b). [Emphasis in original; p. 175.]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8168,7 +8168,7 @@ "text": "The restrictive views contained in the passing comments regarding Article 1F(b) made in obiter dicta in Ward and Pushpanathan find little support in the international case law. Recent jurisprudence out of the United Kingdom, Australia, New Zealand, and the European Union rejects the view that the purpose of Article 1F(b) is confined to exclusion of fugitives.\n\nIn T. v. Secretary of State for the Home Department, [1996] 2 All E.R. 865, the U.K. House of Lords discussed the purpose of Article 1F generally and indicated that the purpose of Article 1F(b) was not limited to exclusion of fugitives. Rather, Article 1F(b) recognizes that there are those “whose criminal habits ma[ke] it unreasonable for them to be forced on to a host nation against its will” (p. 875). More recently, the U.K. Upper Tribunal (Immigration and Asylum Chamber) confirmed that Article 1F(b) is not confined to fugitives in AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (para. 97).\n\nSimilar reasoning has been adopted in Australia. In Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, French J. of the Australian Federal Court stated that “[t]he exemption in Article 1F(b) . . . is protective of the order and safety of the receiving State” (para. 29). Dhayakpa was subsequently affirmed in Ovcharuk v. Minister for Immigration and Multicultural Affairs (1998), 88 F.C.R. 173, where the Australian Federal Court specifically declined to follow this Court’s dicta in Ward and Pushpanathan that Article 1F(b) applied only to fugitives (pp. 6 and 13).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8186,7 +8186,7 @@ "text": "The leading Australian case is Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533. Kirby J. made an extensive survey of the applicable principles of international law, and the context, object and purposes of the Refugee Convention. While he acknowledged the Refugee Convention’s humanitarian objectives and the “heavy burdens” it imposes on the contracting states (para. 94), he also found that the Refugee Convention represented a compromise between competing purposes: . . . countries of refuge are usually entitled to ensure the integrity of their own communities. In the case of serious crimes, such countries are normally entitled to exclude persons convicted of, or suspected of complicity in, such crimes. This is because such involvement may indicate, to some degree at least, the possibility of future risk to the community of the country of refuge. Without such entitlement in defined extreme cases, there would be a risk that the protective objectives of the Convention might be undermined by strong popular and political resentment. [Footnote omitted; para. 95.]\n\nIn Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, the Supreme Court of New Zealand stated that two purposes underlie Article 1F(b): (1) to prevent fugitives from avoiding punishment for their crimes; and (2) to protect the security of states. The court made clear that the language of Article 1F(b) “cannot . . . be read as confining exclusion to those who are fugitives from justice” (para. 82).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8204,7 +8204,7 @@ "text": "In B (Area of Freedom, Security and Justice), both the German Federal Administrative Court and the European Court of Justice held that current dangerousness is not relevant to the application of Article 1F(b). While the claimants in B (Area of Freedom, Security and Justice) were fugitives, both courts went on to discuss the general purpose and scope of both Articles 1F(b) and 1F(c) and suggested that the exclusions apply to anyone who has ever committed the acts referenced in those provisions. After examining the Travaux préparatoires of the Refugee Convention, the German Federal Administrative Court held that the dominant purpose of Article 1F(b) is to “protect refugee status from abuse, by keeping it from being granted to undeserving applicants” and to “prevent refugee status from being discredited by including criminals in the group of recognised refugees” (paras. 29-30). The European Court of Justice stated that Article 1F(b) operates as “a penalty for acts committed in the past” (para. 103) and was “introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails” (para. 104). In other words, Article 1F(b) is aimed at excluding from refugee status persons who have committed a serious crime, regardless of what may have happened since.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8222,7 +8222,7 @@ "text": "I cannot agree with Justice Abella when she says that B (Area of Freedom, Security and Justice) “said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives” (para. 120). To the contrary, the European Court of Justice, at paras. 100-105, made it clear that Articles 1F(b) and 1F(c) operate in the same way: to preserve the dignity of refugee status by excluding anyone who has ever committed the acts listed in those provisions. Indeed, even the appellant properly concedes that “a number of the propositions [in the European Court’s reasoning] seem to suggest that the Article [1F(b)] applies without limit” (A.F., at para. 78).\n\nTwo courts, however, have taken a narrow view of Article 1F(b). In Belgium, the Conseil du contentieux des étrangers has held that factors such as expiation, remorse, or even subsequent acts of charity are relevant to whether a claimant is deserving of refugee protection in a given case (see X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479, May 18, 2009, and X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011).\n\nAnd in France, the Conseil d’État has stated that, while protection of the host society is, besides exclusion of fugitives, a rationale for Article 1F(b), a claimant who has served his sentence for a serious crime should not be excluded unless it is found, on the basis of something more than the fact that an Article 1F(b) crime was committed, that he would represent a danger to the public (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8240,7 +8240,7 @@ "text": "The Federal Court of Appeal, confronted with this array of jurisprudence, has inclined to the view of the High Court of Australia and the European Court of Justice in a series of cases that includes Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R. 164, and the decision under appeal. The Federal Court of Appeal has not followed the obiter statements in Ward and Pushpanathan and has held that sentence completion does not “allow [a claimant] to avoid the application of Article 1F(b)” (Jayasekara, at para. 57).\n\nI conclude that the dominant tide of the jurisprudence is inconsistent with the conclusion that Article 1F(b) operates so as to exclude only fugitives, as well as with the proposition that post-crime conduct must be balanced against the crime’s seriousness. Of particular note, none of the international courts accept the dicta in Ward and Pushpanathan that exclusion of fugitives is the only rationale for Article 1F(b). In my view, the Ward and Pushpanathan obiter statements should no longer be followed. (6) Conclusion on the Scope of Article 1F(b)\n\nArticle 1F(b) excludes anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee. Its application is not limited to fugitives, and neither is the seriousness of the crime to be balanced against factors extraneous to the crime such as present or future danger to the host society or post-crime rehabilitation or expiation. C. How Should a Crime’s Seriousness Be Assessed?\n\nThe appellant concedes that his crimes were “serious” when they were committed, obviating the need to discuss what constitutes a “serious . . . crime” under Article 1F(b). However, a few comments on the question may be helpful.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8258,7 +8258,7 @@ "text": "The Federal Court of Appeal in Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.), and Jayasekara has taken the view that where a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada, the crime will generally be considered serious. I agree. However, this generalization should not be understood as a rigid presumption that is impossible to rebut. Where a provision of the Canadian Criminal Code, R.S.C. 1985, c. C-46, has a large sentencing range, the upper end being ten years or more and the lower end being quite low, a claimant whose crime would fall at the less serious end of the range in Canada should not be presumptively excluded. Article 1F(b) is designed to exclude only those whose crimes are serious. The UNHCR has suggested that a presumption of serious crime might be raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs trafficking, and armed robbery (Goodwin-Gill, at p. 179). These are good examples of crimes that are sufficiently serious to presumptively warrant exclusion from refugee protection. However, as indicated, the presumption may be rebutted in a particular case. While consideration of whether a maximum sentence of ten years or more could have been imposed had the crime been committed in Canada is a useful guideline, and crimes attracting a maximum sentence of ten years or more in Canada will generally be sufficiently serious to warrant exclusion, the ten-year rule should not be applied in a mechanistic, decontextualized, or unjust manner. D. The Domestic Statutory Context and the Canadian Charter of Rights and Freedoms", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8276,7 +8276,7 @@ "text": "Mr. Febles’ final argument is that his suggested interpretation of Article 1F(b) should be adopted because it creates harmony within the IRPA and ensures consistency with the Charter . This argument conflates two different interpretive exercises.\n\nAs discussed, Article 1F(b) of the Refugee Convention is part of an international treaty, the meaning of which is not affected by provisions of the IRPA . However, the Board is bound by the IRPA , and not by the Refugee Convention itself. Parliament has the power to pass legislation that complies with Canada’s obligations under the Refugee Convention, or to pass legislation that either exceeds or falls short of the Refugee Convention’s protections. In this case, therefore, there are two separate inquiries. First, what does Article 1F(b) of the Refugee Convention mean? For this first inquiry, the statutory scheme and the Charter are not relevant. Second, what does s. 98 of the IRPA mean? For this second inquiry, the domestic statutory context and the Charter are potentially relevant.\n\nI earlier concluded that Article 1F(b) of the Refugee Convention applies to anyone who has ever committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee.\n\nSection 98 of the IRPA expressly incorporates Article 1F(b) of the Refugee Convention, stating: “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.” As such, it is clear that Parliament’s intent was for s. 98 to exclude from refugee protection in Canada all persons falling under Article 1F(b) of the Refugee Convention. There is nothing in the scheme of the IRPA as a whole that indicates a contrary intention.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8294,7 +8294,7 @@ "text": "There is similarly no role to play for the Charter in interpreting s. 98 of the IRPA . Where Parliament’s intent for a statutory provision is clear and there is no ambiguity, the Charter cannot be used as an interpretive tool to give the legislation a meaning which Parliament did not intend: Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, at paras. 61-62. Moreover, as the Court of Appeal held, s. 98 of the IRPA is consistent with the Charter . As stated at para. 10 of these reasons, even if excluded from refugee protection, the appellant is able to apply for a stay of removal to a place if he would face death, torture or cruel and unusual treatment or punishment if removed to that place (ss. 97 , 112 , 113 (d)(i) and 114(1) (b) of the IRPA ). On such an application, the Minister would be required to balance the risks faced by the appellant if removed against the danger the appellant would present to the Canadian public if not removed (s. 113 (d) of the IRPA ). Section 7 of the Charter may also prevent the Minister from issuing a removal order to a country where 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\nWhile the appellant would prefer to be granted refugee protection than have to apply for a stay of removal, the Charter does not give a positive right to refugee protection. The appellant is excluded from refugee protection as a result of his commission of serious non-political crimes. If removal of the appellant to Cuba jeopardizes his Charter rights, his recourse is to seek a stay of removal, as discussed earlier.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8312,7 +8312,7 @@ "text": "Alternatively, if the appellant believes that the refugee status he was previously granted by the United States was improperly stripped by U.S. authorities under 8 U.S.C. § 1158(c)(2)(B) and § 1158(c)(3), he must challenge this in the justice system of the United States. The Canadian justice system cannot be invoked to determine the correctness or the constitutionality of decisions made by U.S. officials pursuant to U.S. laws. IV. Disposition\n\nI would dismiss the appeal and uphold the decision of the Board denying refugee protection to the appellant. The reasons of Abella and Cromwell JJ. were delivered by\n\nAbella J. (dissenting) — In the wake of the mass persecution and displacement of persons during World War II, the international community responsively consolidated and entrenched international protection for refugees through the 1951 United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention).\n\nThe Refugee Convention, as amended by a 1967 Protocol relating to the Status of Refugees, 606 U.N.T.S. 267, is today the Rosetta Stone of refugee protection under international law, setting out the definition of who is considered a refugee, the rights of refugees, and the corresponding obligations of states towards refugees in their territory. Among other humanitarian protections provided in the Refugee Convention, the prohibition against refoulement under Article 33 provides that signatory states are prohibited from forcibly expelling or returning refugees to a territory in which there is a risk of persecution.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8330,7 +8330,7 @@ "text": "While Article 1 sets out broad parameters for those persons with a well-founded fear of persecution who will be considered refugees, the category is not open-ended. The signatories to the Refugee Convention did not want the protections flowing from refugee status to be extended to individuals whose designation as refugees would compromise the integrity and political viability of those very protections.\n\nArticle 1F sets out the grounds for excluding an individual from the status of “refugee”. The claim for refugee status in this case depends on a determination of when the commission of a serious non-political crime in accordance with Article 1F(b) will disqualify an individual from the protective scope of the Refugee Convention. With great respect, I draw a different interpretive conclusion than does the majority. While Articles 1F(a) and (c) represent absolute barriers to refugee status, the human rights approach to interpretation mandated by the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37 (Vienna Convention), suggests a less draconian interpretation of Article 1F(b). In my view, except in the case of very serious crimes, an individual should not automatically be disqualified from the humanitarian protection of the Refugee Convention under this provision and should be entitled to have any expiation or rehabilitation taken into account. Background\n\nThe facts underlying the criminal conduct in question in this appeal are not contested. Luis Alberto Hernandez Febles is a Cuban citizen born on December 4, 1954. He left Cuba for the United States on May 14, 1980. He was granted refugee status in the United States on the ground of fear of persecution as a political dissident.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8348,7 +8348,7 @@ "text": "Mr. Febles pleaded guilty in 1984 and 1993 to two criminal offences in California. They are the basis of this appeal.\n\nOn July 2, 1984, Mr. Febles turned himself in to the police after having struck someone on the head with a hammer while the victim was sleeping. He had consumed alcohol at the time of the offence. On November 20, 1984, Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm” under the Penal Code of California (s. 245(a)(1)), and was sentenced to two years in prison and three years of probation.\n\nThe second offence occurred on October 3, 1993, when Mr. Febles uttered threats while pointing a knife at someone. Mr. Febles pleaded guilty to “assault . . . with a deadly weapon . . . other than a firearm”. He was sentenced to two years in prison and three years of probation.\n\nMr. Febles does not deny responsibility for these offences. He admitted that he had serious alcohol problems at the time, but said that he has since stopped drinking after completing an Alcoholic Anonymous course between 1998 and 2002. From 2002 to 2008, Mr. Febles was gainfully employed in the United States.\n\nMr. Febles entered Canada on October 12, 2008. Two days later, on October 14, 2008, he reported to the authorities and applied for refugee status on the ground of fear of persecution in Cuba for his political beliefs. He freely disclosed his criminal convictions to the Canadian authorities in his interview with the Canada Border Services Agency.\n\nOn the basis of the Border Services report, Mr. Febles was referred to the Immigration Division of the Immigration and Refugee Board (Board) for an inadmissibility hearing. The Immigration Division concluded that Mr. Febles was inadmissible based on having committed a serious non-political crime.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8366,7 +8366,7 @@ "text": "A deportation order was issued on June 3, 2010.\n\nOn October 14, 2010, the Board’s Refugee Protection Division heard Mr. Febles’ claim for refugee protection. The Minister of Public Safety and Emergency Preparedness filed a notice to intervene, arguing that Mr. Febles should be excluded from the definition of refugee under Article 1F(b) of the Refugee Convention because he had committed a serious non-political crime. Mr. Febles’ position was that he had served his sentences, was now rehabilitated, and posed no danger to Canada.\n\nThe Board dismissed his claim for refugee status on October 27, 2010, concluding that the gravity of his crime in 1984 disqualified him from refugee status under Article 1F(b) of the Refugee Convention.\n\nMr. Febles’ application for judicial review was dismissed by both the Federal Court, 2011 FC 1103, 397 F.T.R. 179, and Federal Court of Appeal, 2012 FCA 324, 442 N.R. 290. For the following reasons, I would allow the appeal and remit the matter to the Board for redetermination. Analysis\n\nArticle 1F of the Refugee Convention excludes three categories of individuals from the protective scope of its provisions by limiting the definition of a “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.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8384,7 +8384,7 @@ "text": "The consequences of exclusion under Article 1F are significant. If an individual becomes ineligible for the status of a “refugee” on the basis of one of those exclusionary grounds, the humanitarian protections provided in the Refugee Convention are denied altogether, including the protection from refoulement under Article 33. An excluded individual is consequently at risk of being returned to face persecution in his or her country of origin, barring the availability of any residual protection under domestic or international human rights law.\n\nParliament incorporated Article 1F into the Immigration and Refugee Protection Act , S.C. 2001, c. 27 . Section 95 of the Act states that refugee protection is conferred on an individual where the Immigration and Refugee Board “determines the person to be a Convention refugee or a person in need of protection”. Section 98 carves out an exception for persons covered by Article 1F.\n\nArticle 31 of the Vienna Convention sets out the general rule for the interpretation of international treaties such as the Refugee Convention. Article 31(1) states: A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8402,7 +8402,7 @@ "text": "Among other interpretive methods, Article 31(3) of the Vienna Convention provides that subsequent practice among the signatory states is relevant to context in the interpretive exercise where that practice “establishes the agreement of the parties regarding its interpretation”; see also Yugraneft Corp. v. Rexx Management Corp., [2010] 1 S.C.R. 649, at para. 21. Article 32 provides that recourse may be had to the travaux préparatoires of a treaty as a supplementary means of interpretation “in order to confirm the meaning resulting from the application of article 31”, or where the application of Article 31 results in ambiguity or a result which is “manifestly absurd or unreasonable”: Peracomo Inc. v. TELUS Communications Co., [2014] 1 S.C.R. 621, at para. 100.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8420,7 +8420,7 @@ "text": "In Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, Bastarache J. described the application of this interpretive approach in the context of interpreting the Refugee Convention: [The Vienna Convention rules on treaty interpretation] have been applied by this Court in two recent cases, one involving direct incorporation of treaty provisions (Thomson v. Thomson, [1994] 3 S.C.R. 551) and another involving a section of the Immigration Act intended to implement Canada’s obligations under the Convention (Ward, supra). In the latter case, La Forest J. makes use of several interpretative devices: the drafting history of, and preparatory work on the provision in question; the United Nations High Commissioner for Refugees’ Handbook on Procedures and Criteria for Determining Refugee Status (“UNHCR Handbook”), and previous judicial comment on the purpose and object of the treaty. Indeed, at p. 713, La Forest J. was willing to consider submissions of individual delegations in the travaux préparatoires, although he recognized that, depending on their content and on the context, such statements “may not go far” in supporting one interpretation over another. . . . . . . a priori denial of the fundamental protections of a treaty whose purpose is the protection of human rights is a drastic exception to the purposes of the Convention . . . and can only be justified where the protection of those rights is furthered by the exclusion. [paras. 53 and 74]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8438,7 +8438,7 @@ "text": "In light of the human rights purposes of the Refugee Convention and the dramatic consequences of exclusion from the status of a refugee, Article 1F requires a particularly cautious interpretation: Ezokola v. Canada (Citizenship and Immigration), [2013] 2 S.C.R. 678, at paras. 31-36; Pushpanathan, at para. 57; see also Al-Sirri v. Secretary of State for the Home Department, [2012] UKSC 54, [2013] 1 A.C. 745, at paras. 12 and 16; United Nations High Commissioner for Refugees (UNHCR), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online) (UNHCR Guidelines), at para. 2.\n\nThe link between the human rights object and a cautious interpretation is highlighted in the Preamble to the Refugee Convention itself, as LeBel and Fish JJ. confirmed in Ezokola: The preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”. [Para. 32, citing Pushpanathan, at para. 57.]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8456,7 +8456,7 @@ "text": "In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, La Forest J. explained how the animating human rights purposes of the Refugee Convention inform the interpretation of the elements of the definition of “Convention refugee”: Underlying the Convention is the international community’s commitment to the assurance of basic human rights without discrimination. This is indicated in the preamble to the treaty as follows: Considering that the Charter of the United Nations and the Universal Declaration of Human Rights approved on 10 December 1948 by the General Assembly have affirmed the principle that human beings shall enjoy fundamental rights and freedoms without discrimination. This theme outlines the boundaries of the objectives sought to be achieved and consented to by the delegates. It sets out, in a general fashion, the intention of the drafters and thereby provides an inherent limit to the cases embraced by the Convention. Hathaway . . . thus explains the impact of this general tone of the treaty on refugee law: The dominant view, however, is that refugee law ought to concern itself with actions which deny human dignity in any key way, and that the sustained or systemic denial of core human rights is the appropriate standard. This theme sets the boundaries for many of the elements of the definition of “Convention refugee”. [p. 733]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8474,7 +8474,7 @@ "text": "This takes us to the purpose of the exclusion clauses in Article 1F. In Pushpanathan, Bastarache J. described their underlying purpose and relationship to the Refugee Convention as follows: The rationale is that those who are responsible for the persecution which creates refugees should not enjoy the benefits of a Convention designed to protect those refugees. As La Forest J. observes in Ward, supra, at p. 733, “actions which deny human dignity in any key way” and “the sustained or systemic denial of core human rights . . . se[t] the boundaries for many of the elements of the definition of ‘Convention refugee’”. This purpose has been explicitly recognized by the Federal Court of Appeal in the context of the grounds specifically enumerated in Article 1F(a) in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, where Linden J.A. stated (at p. 445): “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” [para. 63]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8492,7 +8492,7 @@ "text": "Bastarache J. rejected the suggestion that the exclusion clauses in Article 1F were intended to protect the country of refuge from dangerous refugees who are at a risk of reoffending. In his view, this interest is addressed by Article 33 of the Refugee Convention, which permits a state to expel a refugee to his or her native country if the individual is considered a danger to the receiving state (refoulement). To fold this function into Article 1F as well, in his view, would render Article 33 redundant: The purpose of Article 1 is to define who is a refugee. Article 1F then establishes categories of persons who are specifically excluded from that definition. The purpose of Article 33 of the Convention, by contrast, is not to define who is and who is not a refugee, but rather to allow for the refoulement of a bona fide refugee to his or her native country where he or she poses a danger to the security of the country of refuge, or to the safety of the community. This functional distinction is reflected in the Act, which adopts Article 1F as part of s. 2, the definitional section, and provides for the Minister’s power to deport an admitted refugee under s. 53, which generally incorporates Article 33. Thus, the general purpose of Article 1F is not the protection of the society of refuge from dangerous refugees, whether because of acts committed before or after the presentation of a refugee claim; that purpose is served by Article 33 of the Convention. Rather, it is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status. Although all of the acts described in Article 1F could presumably fall within the grounds for refoulement described in Article 33, the two are distinct. [Emphasis added; para. 58.]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8510,7 +8510,7 @@ "text": "The UNHCR Guidelines also provide guidance on the purpose of the exclusion clauses in Article 1F generally: The rationale for the exclusion clauses, which should be borne in mind when considering their application, is that certain acts are so grave as to render their perpetrators undeserving of international protection as refugees. Their primary purpose is to deprive those guilty of heinous acts, and serious common crimes, of international refugee protection and to ensure that such persons do not abuse the institution of asylum in order to avoid being held legally accountable for their acts. The exclusion clauses must be applied “scrupulously” to protect the integrity of the institution of asylum, as is recognised by UNHCR’s Executive Committee in Conclusion No. 82 (XLVIII), 1997. At the same time, given the possible serious consequences of exclusion, it is important to apply them with great caution and only after a full assessment of the individual circumstances of the case. The exclusion clauses should, therefore, always be interpreted in a restrictive manner. [Emphasis added; para. 2.]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8528,7 +8528,7 @@ "text": "Broadly speaking, then, Article 1F operates to maintain the integrity of the system of international refugee protection and the status of being a “refugee”. The parties to the Refugee Convention recognized this important function in their 2001 Declaration of States Parties to the 1951 Convention and or its 1967 Protocol Relating to the Status of Refugees, HCR/MMSP/2001/09 (Declaration of States), where the signatories reaffirmed their commitment to continue their efforts aimed at ensuring the integrity of the asylum institution, inter alia, by means of carefully applying Articles 1F and 33(2) of the 1951 Convention, in particular in light of new threats and challenges . . . . [Emphasis added; p. 3.]\n\nIn order to screen individuals who are not “bona fide refugees”, the application of Article 1F of the Refugee Convention operates to protect the integrity of the international refugee protection by excluding individuals who, as a result of having committed such “heinous acts, and serious common crimes”, are themselves considered undeserving of the status of refugee: UNHCR Guidelines, at para. 2; Pushpanathan, at para. 63; Ezokola, at para. 34.\n\nThe particular exclusion under scrutiny in this appeal is the one in Article 1F(b), which excludes individuals from the Refugee Convention where there “are serious reasons for considering that . . . he has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee”.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8546,7 +8546,7 @@ "text": "There is little doubt that the primary purpose of Article 1F(b) was to exclude those individuals who would abuse the status of a refugee by avoiding accountability through prosecution or punishment for a serious crime outside the country of refuge. For the clause to apply, the crime must have been committed “outside the country of refuge prior to his [or her] admission to that country as a refugee”. This territorial limitation has been relied on as a strong textual indication that Article 1F(b) was intended to exclude those individuals who seek to abuse the status of being a refugee by evading prosecution in another jurisdiction: James C. Hathaway and Michelle Foster, The Law of Refugee Status (2nd ed. 2014), at p. 544. Further support for this interpretation emerges from the surrounding context of Article 1F(b), the UNHCR Guidelines, at para. 2, the interpretation of Article 1F(b) adopted in other jurisdictions, and the drafting history and travaux préparatoires of the Refugee Convention. See also Pushpanathan, at para. 73; Ward, at p. 743.\n\nThere is considerable debate, however, as to the extent to which Article 1F(b) was also intended to fulfill the additional purpose of excluding individuals who, as a result of having committed and been prosecuted for serious non-political crimes in the past, are considered undeserving of refugee protection under the Refugee Convention.\n\nTo be fully understood, the text of Article 1F(b) must be situated in its surrounding context and considered in light of its drafting history.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8564,7 +8564,7 @@ "text": "The Preamble of the Refugee Convention directs that the contracting parties “revise and consolidate previous international agreements” relating to the rights of refugees, and “extend the scope of and the protection accorded by such instruments by means of a new agreement”.\n\nThe “previous international agreements” referred to in the Preamble each denied refugee protection for individuals who had committed crimes in other countries prior to entering the country of refuge and had yet to be prosecuted and punished for those crimes: Universal Declaration of Human Rights, G.A. Res. 217 A (III), U.N. Doc. A/810, at 71 (Universal Declaration) (adopted by the U.N. General Assembly on December 10, 1948); Constitution of the International Refugee Organization, August 20, 1948, 18 U.N.T.S. 3, Ann. I, Part II (excluding “[o]rdinary criminals who are extraditable by treaty”); Statute of the Office of the United Nations High Commissioner for Refugees, G.A. Res. 428(V) of December 14, 1950, p. 7 (excluding persons who had committed a “crime covered by the provisions of treaties of extradition”).\n\nMoreover, in reaffirming their commitment to international refugee protection, the signatories declared in 2001 that the Refugee Convention is “consistent with Article 14 of the Universal Declaration of Human Rights”: Declaration of States, at para. 2. Article 14 of the Universal Declaration deals with an individual’s right of asylum from persecution: 1. Everyone has the right to seek and to enjoy in other countries asylum from persecution. 2. This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8582,7 +8582,7 @@ "text": "Article 14(2) is also significant because it was central to the discussions by states’ representatives at the Conference of Plenipotentiaries on the Status of Refugees and Stateless Persons in Geneva in July 1951 (Conference of Plenipotentiaries). I agree that the import of the travaux préparatoires with respect to Article 1F(b) is not obvious. But I do not agree, with respect, that the travaux préparatoires provide no insight of significance into the issues before us. In my view, the widely divergent interpretations of Article 1F(b) adopted by courts in other jurisdictions and the uncertainty created by the territorial limits described in Article 1F(b) mandate recourse to the interpretive assistance of the preparatory work.\n\nThroughout the early stages of the drafting history, Article 14(2) of the Universal Declaration, rather than the provision which eventually became Article 1F(b), was directly incorporated in the Refugee Convention. The travaux préparatoires provide some insight into why the signatories to the Convention modified the exclusionary language of Article 14(2) and adopted instead the text which is currently found in Article 1F(b).\n\nAt the Conference of Plenipotentiaries, the representative for the United Kingdom prompted discussion by proposing that the reference to Article 14(2) should be deleted altogether. In his view, incorporating Article 14(2) was entirely unnecessary in light of the provision in the draft Refugee Convention — what eventually became Article 33(2) — which permitted signatories to “refoule” refugees who posed a danger or threat to the country of refuge.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8600,7 +8600,7 @@ "text": "Nonetheless, some states — particularly France and Yugoslavia — were opposed to deleting the reference to Article 14(2) from the draft. France expressed a concern that there was a need to preserve the distinction between “ordinary common-law criminals” and “bona fide refugees” with respect to whether the individual was eligible for the status of a refugee under the Refugee Convention (Conference of Plenipotentiaries, Summary Record of the Twenty-fourth Meeting (Plenipotentiaries), U.N. Doc. A/CONF.2/SR.24 (1951)). The French representative argued that signatories to the Convention should not be required to grant refugee status to an individual who had no right of asylum within the meaning of Article 14(2) since asylum “was the conditio sine qua non of the possession of [refugee] status” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8618,7 +8618,7 @@ "text": "Notably, the representative from the United Kingdom confirmed that Article 14(2) “[was] intended to apply to persons who were fugitives from prosecution in another country for non-political crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)), and the language ought more clearly to reflect this. None of the representatives disagreed with this position. This is not surprising, given that, as in the other previous international agreements noted above, the underlying assumption was that Article 14(2) restricted refugee protection for individuals who remained criminally liable abroad: Atle Grahl-Madsen, The Status of Refugees in International Law (1966), vol. I, Refugee Character, at p. 290. The UK representative also suggested that the language of Article 14(2) be modified so as to ensure that refugees who had committed trivial or minor crimes “should not thereby be placed once and for all beyond the reach of the Convention” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.24 (1951)).\n\nSome representatives expressed concern that the draft Refugee Convention should be coordinated with extradition law, so as to prevent a conflict between the Convention and an extradition treaty, while others were of the view that this was not a concern that needed to be expressly addressed under the Convention, but could be dealt with by way or reservations or declarations as needed.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8636,7 +8636,7 @@ "text": "Since it was apparent that the U.K.’s proposal to delete Article 14(2) was not broadly supported, the representatives turned their attention to revising its exclusionary language. France and Yugoslavia were of the view that the exclusion clause should only relate to crimes committed before entry into the territory of the receiving country. France also emphasized that the term “crime” must be distinguished from “misdemeanour”, and proposed that the clause refer only to “serious crimes” (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)). In describing the “vital” necessity of retaining the provision, the representative from France emphasized the need for a provision which would permit France to screen individuals at the border and grant asylum for some individuals on French territory, without having to confer on those individuals the status of a refugee (ibid.).\n\nAfter some discussion, a variation proposed by Yugoslavia was ultimately adopted,[1] and agreed to by the U.K.’s representative because while he did not regard the revised Yugoslav amendment as entirely free from objection, [he] felt that it at least removed his . . . main objection to the text . . . as originally drafted, which would have made it too easy for States to withdraw the status of refugee from many persons who had been granted asylum from persecution. [Emphasis added; ibid.] After Belgium proposed some minor modifications,[2] Article 1F(b) as it is now drafted was adopted by the representatives.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8654,7 +8654,7 @@ "text": "This linguistic conclusion to the discussions, whose origins were to discuss whether to expand the scope of those who were entitled to refugee status notwithstanding their commission of a crime for which they evaded prosecution, argues strongly against using this expanded protection to narrow the category of those entitled to protection.\n\nThe most significant aspect of the discussions for purposes of this appeal, is that the discussions were only about refugee claimants who had committed a crime outside the country of refuge but had not been convicted or served a sentence for that crime. In this context, there was broad agreement among the representatives that only fugitives from serious non-political crimes be excluded from entitlement. The issue was never about those who had committed serious crimes and had already served their sentences outside the receiving country.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8672,7 +8672,7 @@ "text": "Turning to the interpretation adopted in other jurisdictions of Article 1F(b), it is widely accepted that the original purpose of Article 1F(b) was to deny refugee status to fugitives, namely, those individuals who had avoided prosecution for serious non-political crimes committed abroad. This was based on the premise that enabling those individuals to obtain refugee status would compromise the integrity of the international system of refugee protection. The European Court of Justice, in a decision about the interpretation of Article 12(2)(b) and (c) of the Directive 2004/83/EC of the Council of the European Union which incorporates Article 1F(b) and (c) into E.U. legislation, has recognized that one of the purposes of exclusion under those provisions is to prevent the status of being a refugee “from enabling those who have committed certain serious crimes to escape criminal liability” (Bundesrepublik Deutschland v. B., [2010] EUECJ C-57/09, at para. 104). See also Australia (SRYYY v. Minister for Immigration and Multicultural and Indigenous Affairs, [2005] FCAFC 42, 220 A.L.R. 394); New Zealand (Attorney-General (Minister of Immigration) v. Tamil X, [2010] NZSC 107, [2011] 1 N.Z.L.R. 721, at para. 82 (Tamil X)); the United Kingdom (AH (Algeria) v. Secretary of State for the Home Department, [2013] UKUT 00382 (IAC) (AH)); and France (Office français de protection des réfugiés et apatrides v. Hykaj, No. 320910, May 4, 2011).\n\nAll jurisdictions also appear to agree that there are other circumstances in which Article 1F(b) excludes individuals from the Refugee Convention, but there seems to be little agreement as to when those circumstances arise.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8690,7 +8690,7 @@ "text": "Australian courts have concluded that Article 1F(b) is additionally intended to protect the country of refuge from individuals who are considered dangerous as a result of committing past crimes (Dhayakpa v. Minister of Immigration and Ethnic Affairs (1995), 62 F.C.R. 556, at para. 29; Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, 209 C.L.R. 533, at paras. 15 and 95-96), as has New Zealand (Tamil X, at para. 82). Other jurisdictions, however, like this Court in Pushpanathan, have expressly rejected the proposition that exclusion of dangerous individuals is the underlying purpose of Article 1F(b), even if its application may incidentally have that effect in some cases.\n\nThe European Court of Justice concluded that it would be inconsistent with the purposes of exclusion “to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State” (Bundesrepublik Deutschland v. B., at para. 104). The court held that the dangerousness of the individual is not considered under Article 12(2) of the European directive (incorporating Article 1F), but under the Articles of the directive which incorporate Article 33(2) of the Refugee Convention (para. 101). Notably, this case said nothing about whether — or the extent to which — Article 1F(b) deals with non-fugitives. Nor did it conclude that it automatically excludes anyone who has ever committed a serious crime.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8708,7 +8708,7 @@ "text": "And still other jurisdictions have found that rehabilitation, the seriousness of the crime, and other factors relating to the individual circumstance of the claimant are relevant. In Belgium, in a case about a refugee claimant who had committed and completed sentences for past crimes abroad, the Conseil du contentieux des étrangers concluded that Article 1F(b) applied to exclude the individual from the Refugee Convention on the basis of the individual’s lack of remorse for very grave criminal conduct (X v. Commissaire général aux réfugiés et aux apatrides, No. 69656, November 8, 2011). The Conseil du contentieux des étrangers observed that the decision to exclude the individual at issue had been reached on grounds which included an express reference to the “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees” (Background Note) (online), prepared by the UNHCR in 2003, that the completion of a sentence for a crime may be considered a relevant form of expiation, and that other factors such as the gravity of the offence and the claimant’s age and remorsefulness must also be considered. But in cases involving truly heinous crimes, exclusion under Article 1F(b) will be mandated even where the claimant has completed a sentence for a crime committed and demonstrated remorse (XXX v. État belge, No. 199.079, A. 192.074/XI-16.797, Conseil d’État (Section du contentieux administratif), December 18, 2009; X v. Commissaire général aux réfugiés et aux apatrides, No. 27.479 (Conseil du contentieux des étrangers), May 18, 2009).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8726,7 +8726,7 @@ "text": "In the United Kingdom, earlier decisions of the Immigration Appeal Tribunal took a literal approach to the words of Article 1F(b) and rejected an interpretation in which expiation (understood as “punishment, pardon, or amnesty” or “remorse or change of heart”) is relevant to determining whether past criminal conduct is a basis for exclusion under Article 1F(b): KK (Turkey) v. Secretary of State for the Home Department, [2004] UKIAT 00101, at para. 92; Secretary of State for the Home Department v. AA (Palestine), [2005] UKIAT 00104, at paras. 59-62. Instead, the Tribunal considered it should apply the words of Article 1F(b) “exactly as they are written” (KK, at para. 92).\n\nBut recently, a more generous approach has been taken to the interpretation of Article 1F “because of the serious consequences of excluding a person who has a well-founded fear of persecution from the protection of the Refugee Convention” (Al-Sirri, at paras. 12 and 16; R. (JS (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2010] 3 All E.R. 881).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8744,7 +8744,7 @@ "text": "In a recent decision involving a refugee claimant who had been convicted of and completed a sentence for a prior criminal offence, the Upper Tribunal (Immigration and Asylum Chamber) adopted a high threshold of seriousness for triggering Article 1F(b) where the individual had already completed a sentence for the crime, and left open the possibility that supervening events may be relevant to the analysis (AH). The Tribunal found that Article 1F(b) has two purposes: the “prevention of abuse of the asylum system by undermining extradition law or the mutual interest amongst states in prosecuting serious offenders”, and to exclude “those who have demonstrated by their conduct they are not worthy of it” (para. 85). In determining whether an individual is “unworthy” on the basis of past conduct, the Tribunal found: . . . that limbs 1F(a) and (c) serve to illustrate the level of seriousness required to engage Article 1F(b); the genus of seriousness is at a common level throughout. Those who commit war crimes and acts against the principles and purposes of the United Nations are clear examples of people who are unworthy of protection. [Emphasis added; para. 86.]", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8762,7 +8762,7 @@ "text": "It also noted that the French text of Article 1F(b) provides important insight into the level of seriousness required for exclusion under that clause: The French text of Article 1F(b) refers to “un crime grave” whereas that for Article 33(2) refers to “un délit particulièrement grave”. A crime in French law is a more serious class of offence than a délit. According to Cornu’s Vocabulaire Juridique (9th edition) 2011, “crime” is a “transgression particulièrement grave”. We accept, however, that the classification of the offence in national law is not the issue (as it happens the offences of which the appellant was convicted in France were both délits). The point is rather that the focus on the use of the English word “crime” in both Articles loses the quality of seriousness reflected in the French word. It may be that the language of the French text is where the UNHCR and the commentators obtain the notion that serious crimes were once capital crimes. [para. 88]\n\nOn those facts, it was held that “personal participation in a conspiracy to promote terrorist violence can be a particularly serious crime for the purpose of Article 1F(b)” (para. 89). The Tribunal emphasized that “[w]e must search for the autonomous international meaning of the term rather than what might be purely national law concerns about what conduct should be penalised and sentencing policy” (para. 83). Seriousness is to be examined at the time the criminal acts were committed, but the Tribunal noted that events such as a pardon, or a final acquittal in the “supervening passage of time may be relevant to whether exclusion is justified” (para. 97).", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8780,7 +8780,7 @@ "text": "The UNHCR’s “Background Note on the Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, which “forms an integral part of UNHCR’s [position]” on the interpretation of Article 1F (UNHCR Guidelines), provides guidance of particular relevance: . . . it is arguable that an individual who has served a sentence should, in general, no longer be subject to the exclusion clause as he or she is not a fugitive from justice. Each case will require individual consideration, however, bearing in mind issues such as the passage of time since the commission of the offence, the seriousness of the offence, the age at which the crime was committed, the conduct of the individual since then, and whether the individual has expressed regret or renounced criminal activities. In the case of truly heinous crimes, it may be considered that such persons are still undeserving of international refugee protection and the exclusion clauses should still apply. This is more likely to be the case for crimes under Article 1F(a) or (c), than those falling under Article 1F(b). [Emphasis added; para. 73.]\n\nTwo related observations emerge from this review. The first is that, like the international agreements relating to refugees which were consolidated and revised by the Refugee Convention, Article 1F(b) was originally intended to maintain the integrity of the status of refugee by excluding fugitives. The travaux préparatoires confirm that the exclusion of those who have committed serious and unpunished crimes was not only a practical concern; it was a moral one for the integrity of the international system of refugee protection.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8798,7 +8798,7 @@ "text": "But as the recent international jurisprudence shows, it remains far from clear that the signatories to the Refugee Convention intended to exclude all individuals who were believed to have committed serious non-political crimes, without regard for whether they had been rehabilitated. In my view, this leaves it open to this Court to reach its own conclusion as to how to interpret the scope of 1F(b).\n\nThe requisite good faith interpretive approach mandates not divorcing the text of Article 1F(b) from its human rights purpose. This is particularly so given the clear concern at the Conference of Plenipotentiaries that the basis for exclusion under Article 1F(b) should be restrictively written so that it would not be “too easy” for states to deny the humanitarian protections guaranteed by the Refugee Convention (Plenipotentiaries, U.N. Doc. A/CONF.2/SR.29 (1951)).\n\nThis means, as the UNHCR Guidelines state, that there is room for discretion to apply Article 1F(b) “only after a full assessment of the individual circumstances of the case” (para. 2 (emphasis added)). There is little or no authority for the proposition that everyone who has committed a serious non-political crime outside the country of refuge remains permanently undeserving of the Refugee Convention’s protection regardless of their supervening personal circumstances. Such a relentlessly exclusionary — and literal — approach would contradict both the “good faith” approach to interpretation required by the Vienna Convention as well as the Refugee Convention’s human rights purpose.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8816,7 +8816,7 @@ "text": "In my view, depending on the seriousness of the crime, if an individual is believed to have committed a serious non-political crime, the purpose of Article 1F(b) can be met where the individual’s circumstances reflect a sufficient degree of rehabilitation or expiation that the claimant ought not to be disqualified from the humanitarian protection of the Refugee Convention. The completion of a sentence, along with factors such as the passage of time since the commission of the offence, the age at which the crime was committed, and the individual’s rehabilitative conduct, will all be relevant. On the other hand, individuals who have committed such serious crimes that they must be considered undeserving of the status of being a refugee would be excluded.\n\nSupport for this interpretation comes from the approach taken by the UNHCR and by foreign courts in Belgium and the United Kingdom, which have emphasized that those who have committed particularly serious crimes are excluded under the Refugee Convention on the basis that they are undeserving of the status of a refugee. This approach also accords with the intention of the signatories to the Refugee Convention to protect the integrity and viability of the international system of protection for refugees by limiting the obligations of the contracting parties towards individuals who have committed very serious crimes. Application", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8834,7 +8834,7 @@ "text": "In concluding that Mr. Febles was excluded from the Refugee Convention on the basis of Article 1F(b), the Board considered “only the crime committed in 1984, for which there is more information” and found that Mr. Febles had committed a “serious non-political crime” (para. 22). It observed that Mr. Febles had completed the sentence imposed for the offence committed in 1984, and that “it might appear unfair to the claimant that, although he served his sentence and took the second chance that life was offering him 17 years ago and chose to follow a straighter path, the crimes he committed many years ago are coming back to haunt him” (para. 24). The question it did not determine is whether this offence was so serious that Mr. Febles must be considered undeserving of the status of a refugee.\n\nMr. Febles expressed remorse immediately after the commission of the offence and turned himself in to the police. He pleaded guilty and served his sentence for his criminal conduct. He also admitted that he was suffering from problems with alcohol at the time of the offence. While it is clear that the criminal conduct was serious, what has yet to be determined is whether the crime is so serious that Mr. Febles’ personal circumstances since serving his sentence in 1984 ought to be disregarded in considering whether he is entitled to refugee status.\n\nI would therefore allow the appeal and return the matter to the Immigration and Refugee Board for redetermination in accordance with these reasons. Appeal dismissed, Abella and Cromwell JJ. dissenting.", "current_to": "2014-10-30", "last_amended": "", - "history": "Also reported: [2014] 3 SCR 431", + "history": "[2014] 3 SCR 431", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/14419/index.do" }, { @@ -8852,7 +8852,7 @@ "text": "Criminal responsibility does not fall solely upon direct perpetrators of crime. A murder conviction, for example, can attach equally to one who pulls the trigger and one who provides the gun. Complicity is a defining characteristic of crimes in the international context, where some of the world’s worst crimes are committed often at a distance, by a multitude of actors.\n\nWhile principal perpetrators may be distinguished from secondary actors for sentencing, the distinction is irrelevant for the purposes of art. 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”). Article 1F(a) 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”. Those who commit these offences are not entitled to the humanitarian protection provided by the Refugee Convention. Where exclusion from refugee status is the only “sanction”, it is not necessary to distinguish between principals, aiders and abettors, or other criminal participants. Individuals may be excluded from refugee protection for international crimes through a variety of modes of commission.\n\nGuilt by association, however, is not one of them.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8870,7 +8870,7 @@ "text": "This appeal homes in on the line between association and complicity. It asks whether senior public officials can be excluded from the definition of “refugee” by performing official duties for a government that commits international crimes. It is the task of this Court to determine what degree of knowledge and participation in a criminal activity justifies excluding secondary actors from refugee protection. In other words, for the purposes of art. 1F(a), when does mere association become culpable complicity?\n\nIn contrast to international crime, determining responsibility for domestic crime is often direct. While party liability plays a role, domestic criminal law, in its simplest form, asks whether one individual has committed one crime against one victim. In international criminal law, the focus often switches to the collective and to the links between individuals and collective action. International criminal law typically asks whether a group of individuals, an organization or a state has committed a series of crimes against a group of victims. In other words, party liability plays a much greater role in the commission of those crimes recognized as some of the most serious in the international legal order: R. Cryer et al., An Introduction to International Criminal Law and Procedure (2nd ed. 2010), at p. 361.\n\nAware of the collective aspects of international crime, the Federal Court of Appeal correctly concluded that senior officials may be held criminally responsible for crimes committed by their government if they are aware of the crimes being committed yet remain in their position without protest and continue to defend the interests of the government.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8888,7 +8888,7 @@ "text": "However, this does not mean that high-ranking government officials are exposed to a form of complicity by association. Complicity arises by contribution. The collective nature of many international crimes does not erase the importance of holding an individual responsible only for his or her own culpable acts: G. Werle, “Individual Criminal Responsibility in Article 25 ICC Statute” (2007), 5 J.I.C.J. 953, at p. 953.\n\nWhile individuals may be complicit in international crimes without a link to a particular crime, there must be a link between the individuals and the criminal purpose of the group — a matter to which we will later return. In the application of art. 1F(a), this link is established where there are serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose. As we shall see, a broad range of international authorities converge towards the adoption of a “significant contribution test”.\n\nThis contribution-based approach to complicity replaces the personal and knowing participation test developed by the Federal Court of Appeal in Ramirez v. Canada (Minister of Employment and Immigration), [1992] 2 F.C. 306. In our view, the personal and knowing participation test has, in some cases, been overextended to capture individuals on the basis of complicity by association. A change to the test is therefore necessary to bring Canadian law in line with international criminal law, the humanitarian purposes of the Refugee Convention, and fundamental criminal law principles.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8906,7 +8906,7 @@ "text": "We would therefore allow the appeal and send the matter back to a different panel of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”) for redetermination in accordance with these reasons. The panel will decide whether there are serious reasons for considering that the appellant’s knowledge of, and participation in, the crimes or criminal purposes of his government meet the complicity by contribution test. As always, whether art. 1F(a) operates to exclude an individual from refugee protection will depend on the particular facts of the case. A. Background Facts\n\nThe appellant, Rachidi Ekanza Ezokola, began his career with the government of the Democratic Republic of Congo (“DRC”) in January 1999. He was hired as a financial attaché at the Ministry of Finance and was assigned to the Ministry of Labour, Employment and Social Welfare in Kinshasa. He later worked as a financial adviser to the Ministry of Human Rights and the Ministry of Foreign Affairs and International Cooperation.\n\nIn 2004, the appellant was assigned to the Permanent Mission of the DRC to the United Nations (“UN”) in New York. In his role as second counsellor of embassy, the appellant represented the DRC at international meetings and UN entities including the UN Economic and Social Council. He also acted as a liaison between the Permanent Mission of the DRC and UN development agencies. In 2007, the appellant served as acting chargé d’affaires. In this capacity, he led the Permanent Mission of the DRC and spoke before the Security Council regarding natural resources and conflicts in the DRC.\n\nThe appellant worked at the Permanent Mission until January 2008 when he resigned and fled to Canada.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8924,7 +8924,7 @@ "text": "The appellant says he ultimately resigned because he refused to serve the government of President Kabila which he considered to be corrupt, antidemocratic and violent. He claims his resignation would be viewed as an act of treason by the DRC government. He claims that the DRC’s intelligence service harassed, intimidated, and threatened him because it suspected he had links to Jean-Pierre Bemba, President Kabila’s opponent. It was on this basis that he sought refugee protection for himself, his wife, and their eight children in Canada. B. Judicial History (1) Immigration and Refugee Board — Refugee Protection Division, 2009 CanLII 89027\n\nThe issue for the Board in determining the appellant’s application for refugee protection was whether the appellant should be excluded from Canada on the basis of s. 98 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). This provision directly incorporates art. 1F(a) of the Refugee Convention into Canadian law. The Board excluded the appellant from the definition of “refugee” under art. 1F(a). It held that, although the government of the DRC was not an organization with a limited and brutal purpose, it had committed crimes against humanity as defined by the Rome Statute of the International Criminal Court, U.N. Doc. A/CONF.183/9, July 17, 1998 (“Rome Statute”), and Canadian jurisprudence: paras. 31 and 43. The Board concluded that the government’s crimes continued even as the government itself changed: para. 33.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8942,7 +8942,7 @@ "text": "The Board relied on various reports — including media, governmental, and non-governmental — to find international crimes were committed on both sides of conflicts spanning several years. For instance, at para. 39, it cited a report by Human Rights Watch, dated January 18, 2006, which condemned the conduct of the DRC government (and others): In 2005, combatants from armed groups as well as government soldiers deliberately killed, raped, and abducted civilians and destroyed or looted their property in repeated attacks, particularly in eastern Congo. A feeble justice system failed to prosecute these recent crimes and did nothing to end impunity for war crimes and crimes against humanity committed during the previous two wars. The September 2005 discovery of mass graves from 1996 in the eastern region of Rutshuru served as a reminder of the unpunished mass slaughter of civilians in Congo in the last decade. . . . The government failure to integrate troops of former belligerent groups into the national army and to properly train and pay its soldiers underlay some military abuses. Military abuses such as those that occurred in December 2004 in North Kivu where government soldiers and combatants refusing integration fought and killed at least one hundred civilians, many of them targeted on an ethnic basis, were repeated elsewhere in 2005. In Walungu, South Kivu, government soldiers raped civilians and looted property during operations against the FDLR in late 2004 and early 2005. In Equateur, poorly paid and undisciplined troops went on a rampage in July 2005, killing, raping, and stealing from civilians.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8960,7 +8960,7 @@ "text": "As government soldiers tried to take control of Ituri and parts of North and South Kivu, Maniema and Katanga in late 2004 and 2005, both they and the combatants fighting them committed grave violations of international humanitarian and human rights law. (World Report 2006: Events of 2005 (2006), at pp. 90-92)\n\nThe Board also cited reports condemning the DRC authorities’ practice of recruiting child soldiers: paras. 36 and 40.\n\nThe Board concluded that “[t]he evidence clearly shows that the Congolese government represses human rights, carries out civilian massacres and engages in governmental corruption”: para. 43.\n\nIn the Board’s view, the appellant was complicit in these crimes. Based on the appellant’s official rank, he had “personal and knowing awareness” of the crimes committed by his government: para. 71. The Board pointed out that the appellant had joined the government voluntarily and continued to act in his official capacity until he feared for his own safety. In the Board’s view, the appellant’s functions and responsibilities helped to sustain the government of the DRC. The Board therefore had serious reasons for considering that the appellant was complicit in the crimes committed by the government. (2) Federal Court — Mainville J., 2010 FC 662, [2011] 3 F.C.R. 377\n\nThe Federal Court allowed the appellant’s application for judicial review. The court determined that an individual cannot be excluded under art. 1F(a) merely because he had been an employee of a state whose government commits international crimes. Complicity requires a nexus between the claimant and the crimes committed by the government.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8978,7 +8978,7 @@ "text": "In order to determine whether this link existed, the court considered the modes of commission provided for in the Rome Statute and concluded that “criminal responsibility for crimes against humanity requires personal participation in the crime alleged or personal control over the events leading to the crime alleged”: para. 86.\n\nIn the court’s view, the required nexus between the claimant and the crimes “may be established by presumption if the claimant held a senior position in the public service, where there are serious reasons for considering that the position in question made it possible for the refugee claimant to commit, incite or conceal the crimes, or to participate or collaborate in the crimes”: para. 4. However, in this case there was “no evidence that tend[ed] to show direct or indirect personal participation by the applicant in the crimes alleged, and there [was] no evidence of incitement or active support by the applicant for those crimes”: para. 104. It was an error to assign responsibility to the appellant solely on the basis of his position within the government, absent a personal nexus between his role and the army or police of the DRC.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -8996,7 +8996,7 @@ "text": "The court certified the following question: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, is there complicity by association in crimes against humanity from the fact that the refugee claimant was a public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and did not denounce them, when there is no proof of personal participation, whether direct or indirect, of the refugee claimant in these crimes? (2011 FCA 224, [2011] 3 F.C.R. 417, at para. 28) (3) Federal Court of Appeal — Noël J.A. (Nadon and Pelletier JJ.A.)\n\nThe Federal Court of Appeal answered the certified question in the affirmative, but not before reformulating it as follows: For the purposes of exclusion pursuant to paragraph 1F(a) of the United Nations Refugee Convention, can complicity by association in crimes against humanity be established by the fact that the refugee claimant was a senior public servant in a government that committed such crimes, along with the fact that the refugee claimant was aware of these crimes and remained in his position without denouncing them? [para. 44]\n\nThe Federal Court of Appeal rejected the Federal Court’s approach to complicity, describing it as inconsistent with Canadian jurisprudence and too narrow: paras. 46 and 57. The Federal Court of Appeal concluded that a senior official may, by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes committed by this government demonstrate “personal and knowing participation” in these crimes and be complicit with the government in their commission. [para. 72]", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9014,7 +9014,7 @@ "text": "The court added that “the final outcome will always depend on the facts particular to each case”: para. 72.\n\nThe Federal Court of Appeal decided it was unnecessary to determine whether the conclusion of the Board was reasonable because it had applied the wrong test for complicity. Instead of applying the “personal and knowing participation” test, the Board considered the appellant’s “personal and knowing awareness”: para. 75. The Federal Court of Appeal therefore remitted the matter to a different panel of the Board to apply the personal and knowing participation test to determine whether the appellant was an accomplice in the crimes committed by the DRC. II. Analysis A. Issues\n\nWhether or not the appellant should ultimately be excluded from refugee protection for having committed international crimes will be determined by the Board at a de novo hearing. The task for this Court is to determine what test for complicity will be applied by the art. 1F(a) decision maker. To answer this question, the Court must also address the evidentiary standard applicable to art. 1F(a) determinations.\n\nFor the reasons that follow, we conclude that an individual will be excluded from refugee protection under art. 1F(a) for complicity in international crimes if there are serious reasons for considering that he or she voluntarily made a knowing and significant contribution to the crime or criminal purpose of the group alleged to have committed the crime. The evidentiary burden falls on the Minister as the party seeking the applicant’s exclusion: Ramirez, at p. 314.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9032,7 +9032,7 @@ "text": "In rejecting a guilt-by-association approach to complicity, we have considered (i) the purpose of the Refugee Convention and art. 1F(a); (ii) the role of the Board; (iii) the international law to which art. 1F(a) expressly refers; and (iv) the approach to complicity under art. 1F(a) taken by other state parties to the Refugee Convention. Each of these demonstrates the need to rein in the Canadian approach to complicity under art. 1F(a) to ensure that individuals are not excluded from refugee protection for merely being associated with others who have perpetrated international crimes. B. The Purpose of the Refugee Convention and Article 1F(a)\n\nIn our view, the purpose of the Refugee Convention, together with the purpose of art. 1F(a), sheds light on the proper approach for determining exclusions from refugee protection based on complicity in international crimes: Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, art. 31.\n\nThe preamble to the Refugee Convention highlights the international community’s “profound concern for refugees” and its commitment “to assure refugees the widest possible exercise of . . . fundamental rights and freedoms”. Our approach to art. 1F(a) must reflect this “overarching and clear human rights object and purpose”: Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, at para. 57.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9050,7 +9050,7 @@ "text": "That said, the Refugee Convention’s commitment to refugee protection is broad, but not unbounded. It does not protect international criminals. Incorporated directly into Canadian law by s. 98 of the IRPA , art. 1F(a) guards against abuses of the Refugee Convention by denying refugee protection 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;\n\nAs the Federal Court of Appeal recognized in Sivakumar v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 433, at p. 445: “When the tables are turned on persecutors, who suddenly become the persecuted, they cannot claim refugee status. International criminals, on all sides of the conflicts, are rightly unable to claim refugee status.” In other words, those who create refugees are not refugees themselves: Pushpanathan, at para. 63; Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, at para. 118.\n\nOn the one hand then, if we approach art. 1F(a) too narrowly, we risk creating safe havens for perpetrators of international crimes — the very scenario the exclusion clause was designed to prevent. On the other hand, a strict reading of art. 1F(a) arguably best promotes the humanitarian aim of the Refugee Convention: United Nations High Commissioner for Refugees (“UNHCR”), “Guidelines on International Protection: Application of the Exclusion Clauses: Article 1F of the 1951 Convention relating to the Status of Refugees”, HCR/GIP/03/05, September 4, 2003 (online), at para. 2.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9068,7 +9068,7 @@ "text": "The foregoing demonstrates the need for a carefully crafted test for complicity — one that promotes the broad humanitarian goals of the Refugee Convention but also protects the integrity of international refugee protection by ensuring that the authors of crimes against peace, war crimes, and crimes against humanity do not exploit the system to their own advantage. As we will explain, these two aims are properly balanced by a contribution-based test for complicity — one that requires a voluntary, knowing, and significant contribution to the crime or criminal purpose of a group. C. The Role of the Refugee Protection Division: Exclusion Determinations, Not Findings of Guilt\n\nIn addition to the purposes of the Refugee Convention and art. 1F(a), the test for complicity must reflect the role of the Board and must work within the practical realities of refugee proceedings.\n\nA refugee hearing is not a criminal trial before an international tribunal. International criminal tribunals render verdicts for some of the most serious crimes in the international legal order. In contrast, the Board makes exclusion determinations; it does not determine guilt or innocence. The purpose of art. 1F(a) “is to exclude ab initio those who are not bona fide refugees at the time of their claim for refugee status”: Pushpanathan, at para. 58.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9086,7 +9086,7 @@ "text": "To achieve this purpose, Board hearings tend to be less formal than criminal trials. The Board is not bound by traditional rules of evidence: IRPA , at s. 170(g) and (h); Thamotharem v. Canada (Minister of Citizenship and Immigration), 2007 FCA 198, [2008] 1 F.C.R. 385, at para. 41; Kumar v. Canada (Citizenship and Immigration), 2009 FC 643 (CanLII), at paras. 28-29. Section 162(2) of the IRPA instructs each division of the Board to “deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit”.\n\nAs we will discuss in more detail below, the differences between a criminal trial and a Board hearing are further reflected in — and accommodated by — the unique evidentiary burden applicable to art. 1F(a) determinations: a person is excluded from the definition of “refugee” on the basis of the “serious reasons for considering” standard.\n\nIn light of these features of refugee proceedings, it is unnecessary to craft a multitude of tests for each mode of commission through which a government official may be held complicit in the crimes committed by his or her government. Unique considerations may arise in cases where the individual is said to have control or responsibility over the alleged perpetrators, or where the individual allegedly made specific contributions to a specific crime (in the form of instigating, ordering, or inciting, for example). However, here we are concerned with general participation in a group’s criminal activity. We must determine when that participation becomes a culpable contribution. D. The Board Must Rely on International Law to Interpret Article 1F(a)", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9104,7 +9104,7 @@ "text": "Following the express direction in the text of art. 1F(a), we now turn to international law for guidance. As mentioned, art. 1F(a) excludes individuals when “there are serious reasons for considering that” they have “committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments”. We must therefore consider international criminal law to determine whether an individual should be excluded from refugee protection for complicity in international crimes: Harb v. Canada (Minister of Citizenship and Immigration), 2003 FCA 39, 302 N.R. 178, at para. 8. We will also look to international jurisprudence for guidance: Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at paras. 82 and 126.\n\nIn our view, international law is relevant both for the elements of the offences and their potential modes of commission. As the appellant stated, art. 1F(a) is not concerned with simply identifying the substantive elements of the offence, but with whether there are serious reasons for considering that the individual has committed a crime as defined in international law. Since there is no dispute in this appeal that the elements of the crimes have been carried out by the government of the DRC, we are concerned here with modes of commission.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9122,7 +9122,7 @@ "text": "Whether an individual is complicit in an international crime cannot be considered in light of only one of the world’s legal systems: Ramirez, at p. 315; Moreno v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 298 (C.A.), at p. 323. This flows not only from the explicit instruction in art. 1F(a) to apply international law, but also from the extraordinary nature of international crimes. They simply transcend domestic norms. As Fannie Lafontaine explains in Prosecuting Genocide, Crimes Against Humanity and War Crimes in Canadian Courts (2012), at p. 95: Genocide, crimes against humanity and war crimes, because of their very raison d’être, their particular magnitude and the context of their commission, cannot be assimilated to ordinary crimes, regardless of the latter crimes’ intrinsic gravity.\n\nInternational criminal law, while built upon domestic principles, has adapted the concept of individual responsibility to this setting of collective and large-scale criminality, where crimes are often committed indirectly and at a distance. As Gerhard Werle puts it, at p. 954: When allocating individual responsibility within networks of collective action, it must be kept in mind that the degree of criminal responsibility does not diminish as distance from the actual act increases; in fact, it often grows. Adolf Hitler, for example, sent millions of people to their deaths without ever laying a hand on a victim himself. And mass killer Adolf Eichmann organized the extermination of European Jews from his office in the Berlin headquarters of the “Reichssicherheitshauptamt” of the SS.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9140,7 +9140,7 @@ "text": "We are therefore required by both the text of art. 1F(a) and the realities of international crime to look beyond the bounds of Canadian criminal law. We must refrain from interpreting and applying international criminal law as if it were simply the mirror of our domestic criminal law: Cassese’s International Criminal Law (3rd ed. 2013), revised by A. Cassese et al., at pp. 6-7.\n\nThe question is — what are the relevant sources of international criminal law?\n\nIn our view, the best place to start is the Rome Statute. As Lord Brown of Eaton-under-Heywood J.S.C. recognized in R. (J.S. (Sri Lanka)) v. Secretary of State for the Home Department, [2010] UKSC 15, [2011] 1 A.C. 184 (“J.S.”), at para. 9: It is convenient to go at once to the [Rome] Statute, ratified as it now is by more than 100 states and standing as now surely it does as the most comprehensive and authoritative statement of international thinking on the principles that govern liability for the most serious international crimes (which alone could justify the denial of asylum to those otherwise in need of it).\n\nCanada’s acceptance of the Rome Statute as authority on international criminal principles is beyond dispute. Canada is not only party to the Rome Statute, Parliament has implemented the treaty into domestic law through the Crimes Against Humanity and War Crimes Act , S.C. 2000, c. 24 .", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9158,7 +9158,7 @@ "text": "Article 25 of the Rome Statute provides extensive descriptions of modes of commission. These enumerated modes of liability have been described as the culmination of the international community’s efforts to codify individual criminal responsibility under international law: A. Cassese, “From Nuremberg to Rome: International Military Tribunals to the International Criminal Court”, in A. Cassese, P. Gaeta and J. R. W. D. Jones, eds., The Rome Statute of the International Criminal Court: A Commentary, vol. I (2002), 3, at pp. 3-4; and E. van Sliedregt, Individual Criminal Responsibility in International Law (2012), at pp. 74-75.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9176,7 +9176,7 @@ "text": "That said, we may not rely exclusively on the approach of the International Criminal Court (“ICC”) to complicity. Despite its importance, the Rome Statute cannot be considered as a complete codification of international criminal law. International criminal law derives from a diversity of sources which include the growing body of jurisprudence of international criminal courts: Cassese’s International Criminal Law, at pp. 9-21. Article 1F(a) of the Refugee Convention refers generally to international instruments and the ICC itself has relied on the jurisprudence of ad hoc tribunals to interpret its own statute: Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-465-Red, Decision on the Confirmation of Charges, 16 December 2011 (ICC, Pre-Trial Chamber I), at para. 280. See also B. Goy, “Individual Criminal Responsibility before the International Criminal Court: A Comparison with the Ad Hoc Tribunals” (2012), 12 Int’l. Crim. L. Rev. 1, at p. 4. In Mugesera, at paras. 82 and 126, this Court highlighted the international law expertise of the ad hoc tribunals and explained that the decisions of the International Criminal Tribunal for the Former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda “should not be disregarded lightly by Canadian courts applying domestic legislative provisions . . . which expressly incorporate customary international law”: para. 126. Accordingly, while our focus will remain on the most recent codification of international criminal law in the Rome Statute, we will also consider other sources, more particularly the jurisprudence of the ad hoc tribunals.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9194,7 +9194,7 @@ "text": "As explained above, we are concerned here with the dividing line between mere association and culpable complicity. While further distinctions between modes of commission may be important for sentencing purposes, exclusion from refugee protection applies when there are serious reasons for considering that an individual has committed an international crime, whatever the mode of commission happens to be. Our task then is to identify threshold criteria for the application of the exclusionary clause, art. 1F(a) of the Refugee Convention. Accordingly, the broadest modes of commission recognized under current international criminal law are most relevant to our complicity analysis, namely, common purpose liability under art. 25(3)(d) of the Rome Statute and joint criminal enterprise developed in the ad hoc jurisprudence.\n\nThese two related modes have adapted the concept of individual criminal responsibility to the collective aspects of international crime. However, as the following analysis will show, individual criminal responsibility has not been stretched so far as to capture complicity by mere association or passive acquiescence. In other words, when we look to international criminal law for guidance, even the broadest modes of commission require a link between the individual and the crime or criminal purpose of a group. Therefore, to the extent that the Federal Court of Appeal’s reasons expand complicity under art. 1F(a) in such a way that it includes mere complicity by association or passive acquiescence, they should not be followed. We shall return below, in greater detail, to this issue. E. Common Purpose Under Article 25(3)(d) of the Rome Statute", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9212,7 +9212,7 @@ "text": "Article 25(3)(d) of the Rome Statute recognizes a broad residual mode of commission by capturing conduct that “[i]n any other way contributes” to a crime committed or attempted by a group acting with a common purpose: 3. . . . a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court if that person: . . . (d) In any other way contributes to the commission or attempted commission of such a crime by a group of persons acting with a common purpose. Such contribution shall be intentional and shall either: (i) Be made with the aim of furthering the criminal activity or criminal purpose of the group, where such activity or purpose involves the commission of a crime within the jurisdiction of the Court; or (ii) Be made in the knowledge of the intention of the group to commit the crime; See Cassese’s International Criminal Law, at pp. 175-76.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9230,7 +9230,7 @@ "text": "In other words, art. 25(3)(d) captures contributions to a crime where an individual did not have control over the crime and did not make an essential contribution as required for co-perpetration under art. 25(3)(a), did not incite, solicit or induce the crime under art. 25(3)(b), or did not intend to aid or abet a certain specific crime under art. 25(3)(c): Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-2842, Judgment Pursuant to Article 74 of the Statute, 14 March 2012 (ICC, Trial Chamber I), at para. 999; Prosecutor v. William Samoei Ruto, ICC-01/09-01/11-373, Decision on the Confirmation of Charges, 23 January 2012 (ICC, Pre-Trial Chamber II), at para. 354; Prosecutor v. Callixte Mbarushimana, ICC-01/04-01/10-514, Judgment on the Prosecutor’s Appeal against the Decision on the Confirmation of Charges, 30 May 2012 (ICC, Appeals Chamber), at para. 8, per Judge Fernández de Gurmendi, concurring; Prosecutor v. Thomas Lubanga Dyilo, ICC-01/04-01/06-803-tEN, Decision on the Confirmation of Charges, 29 January 2007 (ICC, Pre-Trial Chamber I), at para. 337; and Lafontaine, at pp. 237-38.\n\nThe actus reus under para. (d) is distinguishable from the preceding paragraphs under art. 25(3) primarily by the magnitude of contribution required. While the jurisprudence is not completely settled, a pre-trial chamber of the ICC has said that the level of contribution required by art. 25(3)(d) is lower than the forms of commission under paras. (a) to (c). Where commission under para. (a) requires an essential contribution, and para. (c) a substantial one, Pre-Trial Chamber I has concluded that art. 25(3)(d) requires only a significant contribution: Mbarushimana, at paras. 279-85.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9248,7 +9248,7 @@ "text": "While the phrase “any other way” captures every imaginable contribution in a qualitative sense, it does not necessarily apply as broadly in a quantitative sense. Not every contribution, no matter how minor, will be caught by art. 25(3)(d). Setting the threshold at significant contribution is critical. As Pre-Trial Chamber I of the ICC said in Mbarushimana, at para. 277: . . . such a threshold is necessary to exclude contributions which, because of their level or nature, were clearly not intended by the drafters of the Statute to give rise to individual criminal responsibility. For instance, many members of a community may provide contributions to a criminal organisation in the knowledge of the group’s criminality, especially where such criminality is public knowledge. Without some threshold level of assistance, every landlord, every grocer, every utility provider, every secretary, every janitor or even every taxpayer who does anything which contributes to a group committing international crimes could satisfy the elements of 25(3)(d) liability for their infinitesimal contribution to the crimes committed.\n\nThe pre-trial chamber went on to explain that the significance of a contribution will depend on the facts of each case, “as it is only by examining a person’s conduct in proper context that a determination can be made as to whether a given contribution has a larger or smaller effect on the crimes committed”: Mbarushimana, at para. 284. On an appeal by the Prosecutor, the majority of the Appeals Chamber declined to determine the degree of contribution required under art. 25(3)(d): paras. 65-69.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9266,7 +9266,7 @@ "text": "As for the mens rea requirement, the text of art. 25(3)(d) states that a contribution must be intentional, “made with the aim of furthering the criminal activity or purpose of the group” or “in the knowledge of the intention of the group to commit the crime”. The Pre-Trial Chamber I explained in Mbarushimana, at para. 289, that individuals may be complicit in crimes without possessing the mens rea required by the crime itself: Differently from aiding and abetting under article 25(3)(c) of the Statute, for which intent is always required, knowledge is sufficient to incur liability for contributing to a group of persons acting with a common purpose, under article 25(3)(d) of the Statute. Since knowledge of the group’s criminal intentions is sufficient for criminal responsibility, it is therefore not required for the contributor to have the intent to commit any specific crime and not necessary for him or her to satisfy the mental element of the crimes charged.\n\nWhile the subjective element under art. 25(3)(d) can take the form of intent (accused intends to contribute to a group’s criminal purpose) or knowledge (accused is aware of the group’s intention to commit crimes), recklessness is likely insufficient. The text of art. 25(3)(d) itself does not refer to conduct that might contribute to a crime or criminal purpose, and the mental element codified by art. 30 has been held to exclude dolus eventualis, that is, the awareness of a mere risk of prohibited consequences: Prosecutor v. Jean-Pierre Bemba Gombo, ICC-01/05-01/08-424, Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute, 15 June 2009 (ICC, Pre-Trial Chamber II), at para. 360. We note that Pre-Trial Chamber I took a different view of art. 30 in Lubanga, at paras. 351-55.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9284,7 +9284,7 @@ "text": "As the foregoing demonstrates, complicity under art. 25(3)(d) is not based on rank within or association with a group, but on intentionally or knowingly contributing to a group’s crime or criminal purpose. F. Joint Criminal Enterprise\n\nHaving considered the broadest form of accessory liability under the Rome Statute, we now turn to what is perhaps the broadest and most controversial mode of liability recognized by the ad hoc tribunals: joint criminal enterprise. See Cassese’s International Criminal Law, at pp. 163-75; Cryer, at p. 372.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9302,7 +9302,7 @@ "text": "Even though joint criminal enterprise is considered to be a form of principal liability, it is relevant to our task of setting threshold criteria for art. 1F(a) of the Refugee Convention. The line between principal and accessory is not necessarily drawn consistently across international and domestic criminal law. Joint criminal enterprise, like common purpose liability under art. 25(3)(d), captures “lesser” contributions to a crime than aiding and abetting. While aiding and abetting likely requires a substantial contribution to a certain specific crime, joint criminal enterprise and common purpose liability can arise from a significant contribution to a criminal purpose. To the extent that the ICTY Trial Chamber may be seen to have applied a more exacting standard in Prosecutor v. Jovica Stanišić, IT-03-69-T, Judgment, 30 May 2013 (ICTY, Trial Chamber I), it is not in accordance with prevailing appellate authority: Prosecutor v. Duško Tadić, IT-94-1-A, Judgment, 15 July 1999 (ICTY, Appeals Chamber), at para. 229, cited in Lafontaine, at p. 237; Prosecutor v. Radoslav Brđanin, IT-99-36-A, Judgment, 3 April 2007 (ICTY, Appeals Chamber), at paras. 427-28 and 430. Joint criminal enterprise therefore captures individuals who could easily be considered as secondary actors complicit in the crimes of others: Cryer, at p. 372; S. Manacorda and C. Meloni, “Indirect Perpetration versus Joint Criminal Enterprise: Concurring Approaches in the Practice of International Criminal Law?” (2011), 9 J.I.C.J. 159, at pp. 166-67.\n\nIn Tadić, the ICTY articulated three forms of joint criminal enterprise: paras. 196-206. For all three, the actus reus is a “significant” contribution to the criminal enterprise: Brđanin, at para. 430.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9320,7 +9320,7 @@ "text": "However, the mens rea varies for each form. The first form, JCE I, requires shared intent to perpetrate a certain crime. The second, JCE II, requires knowledge of a system of ill treatment and intent to further this system. The third, JCE III, requires intention to participate in and further the criminal activity or purpose of the group, and intent to contribute to the joint criminal enterprise or the commission of a crime by the group. Under JCE III, liability can extend to a crime other than one agreed to in the common plan if the accused intended to participate in and further the criminal activity of the group and (i) it was foreseeable that such a crime might be perpetrated by members of the group and (ii) the accused willingly took that risk. In other words, where an accused intends to contribute to the common purpose, JCE III captures not only knowing contributions but reckless contributions: see Tadić, at para. 228.\n\nDespite the overlap between joint criminal enterprise and art. 25(3)(d), ICC jurisprudence has kept the two modes distinct. Commentators suggest that JCE III will not play a role at the ICC, largely because of the recklessness component: van Sliedregt, at p. 101; Lafontaine, at p. 238; A. Cassese, “The Proper Limits of Individual Responsibility under the Doctrine of Joint Criminal Enterprise” (2007), 5 J.I.C.J. 109, at p. 132; Manacorda and Meloni, at p. 176.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9338,7 +9338,7 @@ "text": "For our purposes, we simply note that joint criminal enterprise, even in its broadest form, does not capture individuals merely based on rank or association within an organization or an institution: Cassese’s International Criminal Law, at p. 163. It requires that the accused have made, at a minimum, a significant contribution to the group’s crime or criminal purpose, made with some form of subjective awareness (whether it be intent, knowledge, or recklessness) of the crime or criminal purpose. In other words, this form of liability, while broad, requires more than a nexus between the accused and the group that committed the crimes. There must be a link between the accused’s conduct and the criminal conduct of the group: Brđanin, at paras. 427-28; Lafontaine, at p. 234; Cryer, at p. 369. G. Summary of Complicity Under International Law\n\nIn sum, while the various modes of commission recognized in international criminal law articulate a broad concept of complicity, individuals will not be held liable for crimes committed by a group simply because they are associated with that group, or because they passively acquiesced to the group’s criminal purpose. At a minimum, complicity under international criminal law requires an individual to knowingly (or, at the very least, recklessly) contribute in a significant way to the crime or criminal purpose of a group. H. Comparative Law and Decisions of Other National Courts\n\nOther state parties to the Refugee Convention have approached art. 1F(a) in a manner that adheres to the minimum requirements for complicity set by the international law principles discussed above.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9356,7 +9356,7 @@ "text": "In J.S., the U.K. Supreme Court rejected the presumption that an individual is complicit in war crimes if he joins an organization, even where that organization has a limited and brutal purpose. Lord Hope of Craighead D.P.S.C., concurring, stated that “mere membership of an organisation that is committed to the use of violence for political ends is not enough to bring an appellant within the exclusion clauses”: para. 43; see also paras. 31 and 44. Rather, as Lord Kerr of Tonaghmore J.S.C., also concurring, wrote, decision makers must “concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established”: para. 55. In his view, this approach “accord[s] more closely . . . with the spirit of articles 25 and 30 of the ICC Rome Statute”: para. 57.\n\nAccording to J.S., an individual would only be excluded under art. 1F(a) “if there are serious reasons for considering him voluntarily to have contributed in a significant way to the organisation’s ability to pursue its purpose of committing war crimes, aware that his assistance will in fact further that purpose”: para. 38.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9374,7 +9374,7 @@ "text": "To assess the accused’s mental state and degree of participation, J.S. provides factors that are remarkably similar to those used by Canadian courts in art. 1F(a) cases: . . . (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation’s war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes. [para. 30]\n\nThese factors are largely subsumed by the six “non-exhaustive” factors set out in Ryivuze v. Canada (Minister of Citizenship and Immigration), 2007 FC 134, 325 F.T.R. 30, at para. 38: (1) the nature of the organization; (2) the method of recruitment; (3) position/rank in the organization; (4) knowledge of the organization’s atrocities; (5) the length of time in the organization; and (6) the opportunity to leave the organization.\n\nThe factors recognized in U.K. and Canadian jurisprudence help guard against a complicity analysis that would exclude individuals from refugee protection on the basis of mere membership or failure to dissociate from a multifaceted organization which is committing war crimes.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9392,7 +9392,7 @@ "text": "Similarly, United States appellate jurisprudence on refugee exclusions does not recognize complicity based on passive acquiescence or “tangential” contributions. While the U.S. “persecutor bar” does not directly incorporate art. 1F(a), it nevertheless represents an approach to exclusion that would only capture those who have committed international crimes as recognized by international criminal law: A.F., at para. 167. A recent decision by the Second Circuit Court of Appeals said: . . . the mere fact that [a person] may be associated with an enterprise that engages in persecution is insufficient by itself to trigger the effects of the persecutor bar. As the Supreme Court’s oft-quoted dicta in Fedorenko v. United States, 449 U.S. 490, 101 S.Ct. 737, 66 L.Ed.2d 686 (1981), illustrates, a “guilt by association” approach to the persecutor bar is improper. . . . . . . Before [a claimant] may be held personally accountable for assisting in acts of persecution, there must be some evidence that he himself engaged in conduct that assisted in the persecution of another. (Xu Sheng Gao v. United States Attorney General, 500 F.3d 93 (2007), at paras. 5-6, cited in P. Zambelli, “Problematic Trends in the Analysis of State Protection and Article 1F(a) Exclusion in Canadian Refugee Law” (2011), 23 Int’l. J. Refugee L. 252, at pp. 284-85.)", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9410,7 +9410,7 @@ "text": "In our view, the approach to complicity adopted by these state parties adheres to the UNHCR’s recommendation in its Guidelines, at para. 18, although it would ask for a “substantial” contribution: For exclusion to be justified, individual responsibility must be established in relation to a crime covered by Article 1F. . . . In general, individual responsibility flows from the person having committed, or made a substantial contribution to the commission of the criminal act, in the knowledge that his or her act or omission would facilitate the criminal conduct. The individual need not physically have committed the criminal act in question. Instigating, aiding and abetting and participating in a joint criminal enterprise can suffice.\n\nIn sum, the foregoing approaches to complicity all require a nexus between the individual and the group’s crime or criminal purpose. An individual can be complicit without being present at the crime and without physically contributing to the crime. However, the UNHCR has explained, and other state parties have recognized, that to be excluded from the definition of refugee protection, there must be evidence that the individual knowingly made at least a significant contribution to the group’s crime or criminal purpose. Passive membership would not be enough, as indicated above in paras. 70-76. I. The Canadian Approach to Criminal Participation Has Been Overextended", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9428,7 +9428,7 @@ "text": "Before being overturned by the Federal Court of Appeal, the Federal Court’s decision in this case was viewed as a potential signal of “a clearer jurisprudence, more closely tied to international standards and to the original wording of the Convention”: A. Kaushal and C. Dauvergne, “The Growing Culture of Exclusion: Trends in Canadian Refugee Exclusions” (2011), 23 Int’l. J. Refugee L. 54, at p. 85. The Federal Court rightly concluded that neither mere membership in a government that had committed international crimes nor knowledge of those crimes is enough to establish complicity: para. 4.\n\nIn our view, the Federal Court’s approach in this case brings appropriate restraint to the test for complicity that had, in some cases, inappropriately shifted its focus towards the criminal activities of the group and away from the individual’s contribution to that criminal activity: see, for example, Osagie v. Canada (Minister of Citizenship and Immigration) (2000), 186 F.T.R. 143; Mpia-Mena-Zambili v. Canada (Minister of Citizenship and Immigration), 2005 FC 1349, 281 F.T.R. 54, at paras. 45-47; Fabela v. Canada (Minister of Citizenship and Immigration), 2005 FC 1028, 277 F.T.R. 20, at paras. 14-19. By answering “yes” to the certified question, the Federal Court of Appeal’s reasons could be seen as having endorsed an overextended approach to complicity, one that captures complicity by association or passive acquiescence.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9446,7 +9446,7 @@ "text": "As Noël J.A. noted in this case, a senior official may be complicit in the government’s crimes “by remaining in his or her position without protest and continuing to defend the interests of his or her government while being aware of the crimes”. Nonetheless, the Federal Court of Appeal reasons should not be improperly relied on to find complicity even where the individual has committed no guilty act and has no criminal knowledge or intent, beyond a mere awareness that other members of the government have committed illegal acts.\n\nIn our view, it is necessary to rearticulate the Canadian approach to art. 1F(a) to firmly foreclose exclusions based on such broad forms of complicity. Otherwise, high-ranking officials might be forced to abandon their legitimate duties during times of conflict and national instability in order to maintain their ability to claim asylum. Furthermore, a concept of complicity that leaves any room for guilt by association or passive acquiescence violates two fundamental criminal law principles.\n\nIt is well established in international criminal law that criminal liability does not attach to omissions unless an individual is under a duty to act: Cassese’s International Criminal Law, at pp. 180-82. Accordingly, unless an individual has control or responsibility over the individuals committing international crimes, he or she cannot be complicit by simply remaining in his or her position without protest: Ramirez, at pp. 319-20. Likewise, guilt by association violates the principle of individual criminal responsibility. Individuals can only be liable for their own culpable conduct: van Sliedregt, at p. 17.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9464,7 +9464,7 @@ "text": "Accordingly, the decision of the Federal Court of Appeal should not be taken to leave room for rank-based complicity by association or passive acquiescence. Such a reading would perpetuate a departure from international criminal law and fundamental criminal law principles. J. The Canadian Test for Complicity Refined\n\nIn light of the foregoing reasons, it has become necessary to clarify the test for complicity under art. 1F(a). To exclude a claimant from the definition of “refugee” by virtue of art. 1F(a), there must be serious reasons for considering that the claimant has voluntarily made a significant and knowing contribution to the organization’s crime or criminal purpose.\n\nWe will address these key components of the contribution-based test for complicity in turn. In our view, they ensure that decision makers do not overextend the concept of complicity to capture individuals based on mere association or passive acquiescence. (1) Voluntary Contribution to the Crime or Criminal Purpose\n\nIt goes without saying that the contribution to the crime or criminal purpose must be voluntarily made. While this element is not in issue in this case, it is easy to foresee cases where an individual would otherwise be complicit in war crimes but had no realistic choice but to participate in the crime. To assess the voluntariness of a contribution, decision makers should, for example, consider the method of recruitment by the organization and any opportunity to leave the organization. The voluntariness requirement captures the defence of duress which is well recognized in customary international criminal law, as well as in art. 31(1)(d) of the Rome Statute: Cassese’s International Criminal Law, at pp. 215-16. (2) Significant Contribution to the Group’s Crime or Criminal Purpose", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9482,7 +9482,7 @@ "text": "In our view, mere association becomes culpable complicity for the purposes of art. 1F(a) when an individual makes a significant contribution to the crime or criminal purpose of a group. As Lord Brown J.S.C. said in J.S., to establish the requisite link between the individual and the group’s criminal conduct, the accused’s contribution does not have to be “directed to specific identifiable crimes” but can be directed to “wider concepts of common design, such as the accomplishment of an organisation’s purpose by whatever means are necessary including the commission of war crimes”: para. 38. This approach to art. 1F(a) is consistent with international criminal law’s recognition of collective and indirect participation in crimes discussed above, as well as s. 21(2) of the Canadian Criminal Code, R.S.C. 1985, c. C-46, which attaches criminal liability based on assistance in carrying out a common unlawful purpose.\n\nGiven that contributions of almost every nature to a group could be characterized as furthering its criminal purpose, the degree of the contribution must be carefully assessed. The requirement of a significant contribution is critical to prevent an unreasonable extension of the notion of criminal participation in international criminal law. (3) Knowing Contribution to the Crime or Criminal Purpose\n\nTo be complicit in crimes committed by the government, the official must be aware of the government’s crime or criminal purpose and aware that his or her conduct will assist in the furtherance of the crime or criminal purpose.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9500,7 +9500,7 @@ "text": "In our view, this approach is consistent with the mens rea requirement under art. 30 of the Rome Statute. Article 30(1) explains that “a person shall be criminally responsible and liable for punishment for a crime within the jurisdiction of the Court only if the material elements are committed with intent and knowledge”. Article 30(2)(a) explains that a person has intent where he “means to engage in the conduct”. With respect to consequences, art. 30(2)(b) requires that the individual “means to cause that consequence or is aware that it will occur in the ordinary course of events”. Knowledge is defined in art. 30(3) as “awareness that a circumstance exists or a consequence will occur in the ordinary course of events”. (4) Applying the Test", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9518,7 +9518,7 @@ "text": "Whether there are serious reasons for considering that an individual has committed international crimes will depend on the facts of each case. Accordingly, to determine whether an individual’s conduct meets the actus reus and mens rea for complicity, several factors may be of assistance. The following list combines the factors considered by courts in Canada and the U.K., as well as by the ICC. It should serve as a guide in assessing whether an individual has voluntarily made a significant and knowing contribution to a crime or criminal purpose: (i) the size and nature of the organization; (ii) the part of the organization with which the refugee claimant was most directly concerned; (iii) the refugee claimant’s duties and activities within the organization; (iv) the refugee claimant’s position or rank in the organization; (v) the length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose; and (vi) the method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. See Ryivuze, at para. 38; J.S., at para. 30; and Mbarushimana, Decision on the Confirmation of Charges, at para. 284.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9536,7 +9536,7 @@ "text": "When relying on these factors for guidance, the focus must always remain on the individual’s contribution to the crime or criminal purpose. Not only are the factors listed above diverse, they will also have to be applied to diverse circumstances encompassing different social and historical contexts. Refugee claimants come from many countries and appear before the Board with their own life experiences and backgrounds in their respective countries of origin. Thus, the assessment of the factors developed in our jurisprudence, the decisions of the courts of other countries, and the international community will necessarily be highly contextual. Depending on the facts of a particular case, certain factors will go “a long way” in establishing the requisite elements of complicity. Ultimately, however, the factors will be weighed with one key purpose in mind: to determine whether there was a voluntary, significant, and knowing contribution to a crime or criminal purpose.\n\nIn the present case, it will be for the Board to determine which factors are significant, based on the application before it. To provide guidance to the Board in making this determination, it may be of assistance to briefly elaborate on each of the factors listed above.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9554,7 +9554,7 @@ "text": "The size and nature of the organization. The size of an organization could help determine the likelihood that the claimant would have known of and participated in the crime or criminal purpose. A smaller organization could increase that likelihood. That likelihood could also be impacted by the nature of the organization. If the organization is multifaceted or heterogeneous, i.e. one that performs both legitimate and criminal acts, the link between the contribution and the criminal purpose will be more tenuous. In contrast, where the group is identified as one with a limited and brutal purpose, the link between the contribution and the criminal purpose will be easier to establish. In such circumstances, a decision maker may more readily infer that the accused had knowledge of the group’s criminal purpose and that his conduct contributed to that purpose. That said, even for groups with a limited and brutal purpose, the individual’s conduct and role within the organization must still be carefully assessed, on an individualized basis, to determine whether the contribution was voluntarily made and had a significant impact on the crime or criminal purpose of the group.\n\nThe part of the organization with which the refugee claimant was most directly concerned. This factor may be relevant if particular parts of the organization were known to be involved with the crime or criminal purpose. For example, where only one part of the organization in question was involved in the crime or criminal purpose, a claimant’s exclusive affiliation with another part(s) of the organization may serve to exonerate him or her for the purpose of art. 1F(a).", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9572,7 +9572,7 @@ "text": "The refugee claimant’s duties and activities within the organization. This factor is likely to be significant in any analysis of complicity, because it goes to the heart of a claimant’s day-to-day participation in the activities of the organization. The Board should consider the link between the duties and activities of a claimant, and the crimes and criminal purposes of the organization.\n\nThe refugee claimant’s position or rank in the organization. A high ranking individual in an organization may be more likely to have knowledge of that organization’s crime or criminal purpose. In some cases, a high rank or rapid ascent through the ranks of an organization could evidence strong support of the organization’s criminal purpose. Moreover, by virtue of their position or rank, individuals may have effective control over those directly responsible for criminal acts, possibly engaging art. 28 of the Rome Statute.\n\nThe length of time the refugee claimant was in the organization, particularly after acquiring knowledge of the group’s crime or criminal purpose. It may be easier to establish complicity where an individual has been involved with the organization for a longer period of time. This would increase the chance that the individual had knowledge of the organization’s crime or criminal purpose. A lengthy period of involvement may also increase the significance of an individual’s contribution to the organization’s crime or criminal purpose.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9590,7 +9590,7 @@ "text": "The method by which the refugee claimant was recruited and the refugee claimant’s opportunity to leave the organization. As mentioned, these two factors directly impact the voluntariness requirement. This requirement may not be satisfied if an individual was coerced into joining, supporting, or remaining in the organization. Similarly, an individual’s involvement with an organization may not be voluntary if he or she did not have the opportunity to leave, especially after acquiring knowledge of its crime or criminal purpose. The Board may wish to consider whether the individual’s specific circumstances (i.e. location, financial resources, and social networks) would have eased or impeded exit.\n\nWe reiterate that the factors discussed above should be relied on only for guidance. We agree with Lord Kerr J.S.C.’s statement in J.S., at para. 55: . . . they are not necessarily exhaustive of the matters to be taken into account, nor will each of the factors be inevitably significant in every case. One needs, I believe, to concentrate on the actual role played by the particular person, taking all material aspects of that role into account so as to decide whether the required degree of participation is established. A full contextual analysis would necessarily include any viable defences, including, but certainly not limited to, the defence of duress, discussed above. K. Evidentiary Standard: Serious Reasons for Considering", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9608,7 +9608,7 @@ "text": "Ultimately, the above contribution-based test for complicity is subject to the unique evidentiary standard contained in art. 1F(a) of the Refugee Convention. To recall, the Board does not make determinations of guilt. Its exclusion decisions are therefore not based on proof beyond a reasonable doubt nor on the general civil standard of the balance of probabilities. Rather, art. 1F(a) directs it to decide whether there are “serious reasons for considering” that an individual has committed war crimes, crimes against humanity or crimes against peace. For guidance on applying the evidentiary standard, we agree with Lord Brown J.S.C.’s reasons in J.S., at para. 39: It would not, I think, be helpful to expatiate upon article 1F’s reference to there being “serious reasons for considering” the asylum seeker to have committed a war crime. Clearly the tribunal in Gurung’s case [2003] Imm AR 115 (at the end of para 109) was right to highlight “the lower standard of proof applicable in exclusion clause cases” — lower than that applicable in actual war crimes trials. That said, “serious reasons for considering” obviously imports a higher test for exclusion than would, say, an expression like “reasonable grounds for suspecting”. “Considering” approximates rather to “believing” than to “suspecting”. I am inclined to agree with what Sedley LJ said in Al-Sirri v Secretary of State for the Home Department [2009] Imm AR 624, para 33: “[The phrase used] sets a standard above mere suspicion. Beyond this, it is a mistake to try to paraphrase the straightforward language of the Convention: it has to be treated as meaning what it says.”", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9626,7 +9626,7 @@ "text": "In our view, this unique evidentiary standard is appropriate to the role of the Board and the realities of an exclusion decision addressed above. The unique evidentiary standard does not, however, justify a relaxed application of fundamental criminal law principles in order to make room for complicity by association. III. Conclusion\n\nFor the foregoing reasons, we would allow the appeal, with costs throughout, and remit the matter to the Refugee Protection Division of the Immigration and Refugee Board for redetermination in accordance with these reasons. A new panel shall apply the contribution-based test for complicity outlined above. A detailed assessment is required to determine whether the particular facts of this case establish serious reasons for considering that the actus reus and mens rea for complicity are present and therefore justify excluding the appellant from the definition of refugee by operation of art. 1F(a) of the Refugee Convention. Appeal allowed with costs throughout.", "current_to": "2013-07-19", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 678", + "history": "[2013] 2 SCR 678", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13184/index.do" }, { @@ -9644,7 +9644,7 @@ "text": "Abella J. — The Immigration and Refugee Protection Act [1] consists of a number of moving parts intended to work together to ensure a fair and humane immigration system for Canada. One of those parts is refugee policy. Under s. 25(1) of the Act, the Minister has a discretion to exempt foreign nationals from the Act’s requirements if the exemption is justified by humanitarian and compassionate considerations, including the best interests of any child directly affected. The issue in this appeal is whether a decision to deny relief under s. 25(1) to a 17-year-old applicant was a reasonable exercise of the humanitarian and compassionate discretion. In my respectful view, it was not. Background\n\nJeyakannan Kanthasamy is a Tamil from northern Sri Lanka. In April 2010, fearing for his safety after he was subjected to detention and questioning by the army and the police, his family arranged for him to travel to Canada to live with his uncle. He was 16 years old.\n\nWhen he arrived in Canada, he made a claim for refugee protection under ss. 96 and 97, which permit applicants to seek refugee status based on a “well-founded” fear of persecution. His claim was based on a fear that because he is a Tamil, the army, the Eelam People’s Democratic Party, the police, or others would arrest or harm him upon his return to Sri Lanka on suspicion that he supports the Liberation Tigers of Tamil Eelam. The Immigration and Refugee Board refused his claim in February 2011, concluding that the authorities in Sri Lanka had taken steps to improve the situation of Tamils, and that he did not have a profile that would put him at risk if he were returned to that country.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9662,7 +9662,7 @@ "text": "In August 2011, he applied for a pre-removal risk assessment, which determines whether an applicant can safely be removed from Canada. The process assesses new risk developments arising after the refugee hearing, but is not a second refugee determination hearing: Martin Jones and Sasha Baglay, Refugee Law (2007), at p. 332. The Officer who decided his pre-removal risk assessment found that Jeyakannan Kanthasamy was credible and accepted the evidence that young Tamils faced discrimination and harassment in Sri Lanka. But she concluded that since this treatment did not rise to the level of persecution, his application should be rejected.\n\nAround the same time, he also filed an application for humanitarian and compassionate relief under s. 25(1) of the Immigration and Refugee Protection Act , seeking to apply for permanent resident status from within Canada. He was then 17 years old. The denial of relief would result in his removal from Canada.\n\nThe Officer who reviewed the application concluded that the relief was not justified by humanitarian and compassionate considerations. Drawing on language set out in Guidelines prepared by the Minister, the Officer said she was “not satisfied that return to Sri Lanka would result in hardship that is unusual and undeserved or disproportionate”.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9680,7 +9680,7 @@ "text": "On judicial review, the Federal Court held that the test was whether the hardship was “unusual and undeserved or disproportionate” in accordance with the Guidelines, and found that the Officer’s decision to deny relief was reasonable. The Federal Court of Appeal largely agreed with both the test and the result. While it concluded that s. 25(1) was not intended to duplicate refugee proceedings, the evidence from those proceedings can nonetheless be considered for the purpose of determining whether the applicant will face “unusual and undeserved, or disproportionate hardship” if returned to the foreign state.\n\nFor the following reasons, I do not, with respect, agree with the conclusion that the Officer’s decision was reasonable. Analysis\n\nThe Immigration and Refugee Protection Act governs the admissibility, eligibility and removal of non-citizens. Under the Act and its accompanying regulations, foreign nationals — individuals who are neither citizens nor permanent residents — seeking permanent resident status must apply for and obtain a visa before entering Canada: Immigration and Refugee Protection Act , s. 11(1) ; Immigration and Refugee Protection Regulations, SOR/2002-227, s. 6. A permanent resident visa may be issued where the foreign national is not inadmissible and meets the requirements of the Act: Immigration and Refugee Protection Act , s. 11(1) .", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9698,7 +9698,7 @@ "text": "Section 25(1) of the Immigration and Refugee Protection Act gives the Minister discretion to exempt foreign nationals from the ordinary requirements of the Act if the Minister is of the opinion that such relief is justified by humanitarian and compassionate considerations. Those considerations are to include the best interests of a child directly affected. At the relevant time, s. 25(1) stated: 25. (1) The Minister must, on request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, 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 obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. A brief history helps explain the purpose of humanitarian and compassionate relief under this provision.\n\nUnder the 1952 Immigration Act, R.S.C. 1952, c. 325, the Minister had an almost unlimited discretion to allow individuals into Canada: Freda Hawkins, Canada and Immigration: Public Policy and Public Concern (1972), at pp. 101-3. Although humanitarian and compassionate considerations were not explicitly part of the legislative scheme at the time, the Minister retained the authority to issue permits to allow certain applicants to remain in Canada: Immigration Act (1952), s. 8. These permits “introduced an element of flexibility and humanitarianism into the administration of immigration law”: Minister of Manpower and Immigration v. Hardayal, [1978] 1 S.C.R. 470, at p. 476.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9716,7 +9716,7 @@ "text": "A discretion to grant relief on the basis of humanitarian and compassionate considerations became an express part of the legislative scheme in the Immigration Appeal Board Act, S.C. 1966-67, c. 90, which created a quasi-judicial, independent Immigration Appeal Board. Section 15(1) of the Immigration Appeal Board Act gave the new Board the power to stay or quash a deportation order based on “compassionate or humanitarian considerations that in the opinion of the Board warrant the granting of special relief”: s. 15(1)(b)(ii). The reason for this power was explained by John Munro, then Parliamentary Secretary for the Minister of Manpower and Immigration: The law establishes general rules as to who may come to Canada and who may stay in Canada. The rules necessarily are general. They cannot precisely accommodate all the variety of individual circumstances. They must be capable of being tempered in their application, according to the merits of individual cases. There will sometimes be humanitarian or compassionate reasons for admitting people who, under the general rules, are inadmissible. [Emphasis added.] (House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at p. 13267)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9734,7 +9734,7 @@ "text": "The meaning of the phrase “humanitarian and compassionate considerations” was first discussed by the Immigration Appeal Board in the case of Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338. The first Chair of the Board, Janet Scott, held that humanitarian and compassionate considerations refer to “those facts, established by the evidence, which would excite in a reasonable man [sic] in a civilized community a desire to relieve the misfortunes of another — so long as these misfortunes ‘warrant the granting of special relief’ from the effect of the provisions of the Immigration Act”: p. 350. This definition was inspired by the dictionary definition of the term “compassion”, which covers “sorrow or pity excited by the distress or misfortunes of another, sympathy”: Chirwa, at p. 350. The Board acknowledged that “this definition implies an element of subjectivity”, but said there also had to be objective evidence upon which special relief ought to be granted: Chirwa, at p. 350.\n\nThe Chirwa test was crafted not only to ensure the availability of compassionate relief, but also to prevent its undue overbreadth. As the Board said: It is clear that in enacting s. 15 (1) (b) (ii) Parliament intended to give this Court the power to mitigate the rigidity of the law in an appropriate case, but it is equally clear that Parliament did not intend s. 15 (1) (b) (ii) of the Immigration Appeal Board Act to be applied so widely as to destroy the essentially exclusionary nature of the Immigration Act and Regulations. [p. 350]", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9752,7 +9752,7 @@ "text": "In proceedings before the Special Joint Committee of the Senate and the House of Commons on Immigration Policy in 1975, Janet Scott elaborated on the importance of being able to guard against the unfairness of deportation in certain cases: . . . it was recognized that deportation might fall with much more force on some persons . . . than on others, because of their particular circumstances, and the Board was therefore empowered to mitigate the rigidity of the law in an appropriate case. Section 15 is a humanitarian and equitable section, which gives the Board power to do what the legislator cannot do, that is, take account of particular cases. [Emphasis added.] (Minutes of Proceedings and Evidence of the Special Joint Committee of the Senate and of the House of Commons on Immigration Policy, Issue No. 49, 1st Sess., 30th Parl., September 23, 1975, at p. 12)\n\nIn 1977, Parliament passed comprehensive immigration reforms that introduced humanitarian and compassionate discretion into other areas of the immigration scheme: Immigration Act, 1976, S.C. 1976-77, c. 52. Notably, under s. 115(2), the Governor in Council was given broad authority to facilitate the admission of “any person” on the basis of humanitarian or compassionate considerations: 115. (2) The Governor in Council may by regulation exempt any person from any regulation made under subsection (1) or otherwise facilitate the admission of any person where the Governor in Council is satisfied that the person should be exempted from such regulation or his admission should be facilitated for reasons of public policy or due to the existence of compassionate or humanitarian considerations.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9770,7 +9770,7 @@ "text": "The role of this discretion was explained by this Court in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817: [The] words [humanitarian and compassionate considerations] and their meaning must be central in determining whether an individual [humanitarian and compassionate] decision was a reasonable exercise of the power conferred by Parliament. The legislation and regulations direct the Minister to determine whether the person’s admission should be facilitated owing to the existence of such considerations. They show Parliament’s intention that those exercising the discretion conferred by the statute act in a humanitarian and compassionate manner. This Court has found that it is necessary for the Minister to consider [a humanitarian and compassionate] request when an application is made . . . . Similarly, when considering it, the request must be evaluated in a manner that is respectful of humanitarian and compassionate considerations. [Emphasis deleted; citation omitted; para. 66.]\n\nMore recently, in 2001, Parliament passed another set of comprehensive reforms by enacting the Immigration and Refugee Protection Act . The humanitarian and compassionate discretion previously found in s. 115(2) of the Immigration Act, 1976 was incorporated into the new s. 25(1): United States of America v. Johnson (2002), 62 O.R. (3d) 327 (C.A.), at para. 47; Diarra v. Canada (Minister of Citizenship and Immigration), 2006 FC 1515, at para. 8 (CanLII); Love v. Canada (Minister of Citizenship and Immigration) (2004), 43 Imm. L.R. (3d) 111 (F.C.), at para. 15.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9788,7 +9788,7 @@ "text": "The Legislative Summary of Bill C-11, the Bill that led to the enactment of the Immigration and Refugee Protection Act , explained that s. 25 “continue[d] the important power of the Minister to override the provisions of the Act and grant permanent residence, or an exemption from any applicable criteria or obligation under the Act, on humanitarian and compassionate grounds or for reasons of public policy”: Library of Parliament, “Bill C-11: The Immigration and Refugee Protection Act ”, Legislative Summary LS-397E, by Jay Sinha and Margaret Young, March 26, 2001, at p. 12 (footnote omitted); Agraira v. Canada (Public Safety and Emergency Preparedness), [2013] 2 S.C.R. 559, at para. 41. The humanitarian and compassionate discretion in s. 25(1) was, therefore, like its predecessors, seen as being a flexible and responsive exception to the ordinary operation of the Act, or, in the words of Janet Scott, a discretion “to mitigate the rigidity of the law in an appropriate case”.\n\nAs noted, Chirwa was decided in the context of an appeal to the Immigration Appeal Board under s. 15 of the Immigration Appeal Board Act. Under the current legislative scheme, the Immigration Appeal Division can similarly exercise that discretion for a number of statutorily defined purposes: see ss. 62 to 71 of the Immigration and Refugee Protection Act . The exercise of humanitarian and compassionate discretion under s. 25(1) of the Immigration and Refugee Protection Act , on the other hand, is limited to situations where a foreign national applies for permanent residency but is inadmissible or does not meet the requirements of the Immigration and Refugee Protection Act .", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9806,7 +9806,7 @@ "text": "But as the legislative history suggests, the successive series of broadly worded “humanitarian and compassionate” provisions in various immigration statutes had a common purpose, namely, to offer equitable relief in circumstances that “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another”: Chirwa, at p. 350.\n\nThat purpose was furthered in Ministerial Guidelines designed to assist officers in determining whether humanitarian and compassionate considerations warrant relief under s. 25(1). They state that the determination of whether there are sufficient grounds to justify granting a humanitarian and compassionate application under s. 25(1), is done by an “assessment of hardship”.\n\nThere will inevitably be some hardship associated with being required to leave Canada. This alone will not generally be sufficient to warrant relief on humanitarian and compassionate grounds under s. 25(1): see Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463, at para. 13 (CanLII); Irimie v. Canada (Minister of Citizenship and Immigration) (2000), 10 Imm. L.R. 206 (F.C.T.D), at para. 12. Nor was s. 25(1) intended to be an alternative immigration scheme: House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40 (Peter MacDougall); see also Evidence, No. 3, 1st Sess., 37th Parl., March 13, 2001, at 9:55 to 10:00 (Joan Atkinson).\n\nAnd, as is stated in s. 25(1.3), added to the Act in 2010 (S.C. 2010, c. 8), s. 25(1) is not meant to duplicate refugee proceedings under s. 96 or s. 97(1), which assess whether the applicant has established a well-founded fear of persecution, risk of torture, risk to life, or risk of cruel and unusual treatment or punishment.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9824,7 +9824,7 @@ "text": "What does warrant relief will clearly vary depending on the facts and context of the case, but officers making humanitarian and compassionate determinations must substantively consider and weigh all the relevant facts and factors before them: Baker, at paras. 74-75.\n\nAccording to the Guidelines, applicants must demonstrate either “unusual and undeserved” or “disproportionate” hardship for relief under s. 25(1) to be granted. “Unusual and undeserved hardship” is defined as hardship that is “not anticipated or addressed” by the Immigration and Refugee Protection Act or its regulations, and is “beyond the person’s control”. “Disproportionate hardship” is defined as “an unreasonable impact on the applicant due to their personal circumstances”: Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds” (online), s. 5.10.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9842,7 +9842,7 @@ "text": "The Guidelines further explain the application of the “unusual and undeserved or disproportionate hardship” standard by setting out a non-exhaustive list of factors that may be relevant: 5.11. Factors to consider in assessment of hardship [Section 25(1)] provides the flexibility to grant exemptions to overcome the requirement of obtaining a permanent residence visa from abroad, to overcome class eligibility requirements and/or inadmissibilities, on humanitarian and compassionate grounds. Officers must assess the hardship that would befall the applicant should the requested exemption not be granted. Applicants may base their requests for [humanitarian and compassionate] consideration on any number of factors including, but not limited to: • establishment in Canada; • ties to Canada; • the best interests of any children affected by their application; • factors in their country of origin (this includes but is not limited to: Medical inadequacies, discrimination that does not amount to persecution, harassment or other hardships that are not described in [ss. 96 and 97]); • health considerations; • family violence considerations; • consequences of the separation of relatives; • inability to leave Canada has led to establishment; and/or • any other relevant factor they wish to have considered not related to [ss. 96 and 97]. [Emphasis added.] (Inland Processing, s. 5.11)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9860,7 +9860,7 @@ "text": "The Guidelines confirm that the humanitarian and compassionate determination under s. 25(1) is a global one, and that relevant considerations are to be weighed cumulatively as part of the determination of whether relief is justified in the circumstances: . . . the officer should assess all facts in the application and decide whether a refusal to grant the request for an exemption would, more likely than not, result in unusual and undeserved or disproportionate hardship. . . . Individual [humanitarian and compassionate] factors put forward by the applicant should not be considered in isolation in a determination of the hardship that an applicant would face; rather, hardship is determined as a result of a global assessment of [humanitarian and compassionate] considerations put forth by the applicant. In other words, hardship is assessed by weighing together all of the [humanitarian and compassionate] considerations submitted by the applicant. [Emphasis added.] (Inland Processing, ss. 5.8 and 5.10)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9878,7 +9878,7 @@ "text": "To date, there appear to be two schools of thought on how to approach the factors to be considered in assessing whether humanitarian and compassionate considerations apply under s. 25(1). A number of Federal Court decisions have implicitly rejected the language in Chirwa and have, instead, treated the Guidelines, and the words “unusual and undeserved or disproportionate hardship”, as setting out the test the applicant must meet in order to receive an exemption on the basis of humanitarian and compassionate grounds. In Flores v. Canada (Minister of Citizenship and Immigration), 2013 FC 1002, for example, the Federal Court talks about unusual and undeserved or disproportionate as being the “correct test” in humanitarian and compassionate applications: paras. 36-39 (CanLII). Similarly, in Sivagurunathan v. Canada (Minister of Citizenship and Immigration), 2013 FC 233, the Federal Court noted that it was the applicant’s burden to satisfy the immigration officer that there was unusual and undeserved or disproportionate hardship: para. 13 (CanLII). The Federal Court observed that “[t]his is the test” and that the disadvantages demonstrated by the applicant had to meet this threshold: para. 13. Also see Park v. Canada (Minister of Citizenship and Immigration), 2012 FC 528, at paras. 46-47 (CanLII).", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9896,7 +9896,7 @@ "text": "A second approach is found in decisions which treat Chirwa less categorically, using the language in Chirwa as co-extensive with the Guidelines: see Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956, at paras. 16-17 (CanLII); Chen v. Canada (Minister of Citizenship and Immigration), 232 F.T.R. 118, at para. 15. In these decisions, the Federal Court and Federal Court of Appeal have made it clear that the Guidelines and the “unusual and undeserved or disproportionate hardship” threshold merely provide assistance to the immigration officer but that they should not be interpreted as fettering the immigration officer’s discretion to consider factors other than those listed in the Guidelines. In Hawthorne v. Canada (Minister of Citizenship and Immigration), [2003] 2 F.C. 555, the Federal Court of Appeal noted that the Guidelines are “not meant as ‘hard and fast’ rules” and are, rather, “an attempt to provide guidance to decision makers when they exercise their discretion”: para. 9. And in Singh v. Canada (Minister of Citizenship and Immigration), 2014 FC 621, the Federal Court noted that humanitarian and compassionate considerations “are not limited . . . to hardship” and that the “Guidelines can only be of limited use because they cannot fetter the discretion given by Parliament”: paras. 10 and 12 (CanLII).", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9914,7 +9914,7 @@ "text": "This second approach, which seems to me to be more consistent with the goals of s. 25(1), focuses more on the equitable underlying purpose of the humanitarian and compassionate relief application process. It sees the words in the Guidelines as being helpful in assessing when relief should be granted in a given case, but does not treat them as the only possible formulation of when there are humanitarian and compassionate grounds justifying the exercise of discretion.\n\nThere is no doubt, as this Court has recognized, that the Guidelines are useful in indicating what constitutes a reasonable interpretation of a given provision of the Immigration and Refugee Protection Act : Agraira, at para. 85. But as the Guidelines themselves acknowledge, they are “not legally binding” and are “not intended to be either exhaustive or restrictive”: Inland Processing, s. 5. Officers can, in other words, consider the Guidelines in the exercise of their s. 25(1) discretion, but should turn “[their] mind[s] to the specific circumstances of the case”: Donald J. M. Brown and The Honourable John M. Evans with the assistance of Christine E. Deacon, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 12-45. They should not fetter their discretion by treating these informal Guidelines as if they were mandatory requirements that limit the equitable humanitarian and compassionate discretion granted by s. 25(1): see Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2, at p. 5; Ha v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 195 (C.A.), at para. 71.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9932,7 +9932,7 @@ "text": "The words “unusual and undeserved or disproportionate hardship” should therefore be treated as descriptive, not as creating three new thresholds for relief separate and apart from the humanitarian purpose of s. 25(1). As a result, what officers should not do, is look at s. 25(1) through the lens of the three adjectives as discrete and high thresholds, and use the language of “unusual and undeserved or disproportionate hardship” in a way that limits their ability to consider and give weight to all relevant humanitarian and compassionate considerations in a particular case. The three adjectives should be seen as instructive but not determinative, allowing s. 25(1) to respond more flexibly to the equitable goals of the provision.\n\nThis brings us to the fact that s. 25(1) refers to the need to take “into account the best interests of a child directly affected”. In Agraira, LeBel J. noted that these interests include “such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections”: para. 41. As the Guidelines note, the “best interests” principle applies to all children under 18 years of age:[2] In an examination of the circumstances of a foreign national under [s. 25(1)], [the Immigration and Refugee Protection Act ] introduces a statutory obligation to take into account the best interests of a child who is directly affected by a decision under this section. This codifies departmental practice into legislation, eliminating any doubt that the interests of a child will be taken into account. This applies to children under the age of 18 years as per the Convention on the Rights of the Child. (Inland Processing, s. 5.12)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9950,7 +9950,7 @@ "text": "The “best interests” principle is “highly contextual” because of the “multitude of factors that may impinge on the child’s best interest”: Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), [2004] 1 S.C.R. 76, at para. 11; Gordon v. Goertz, [1996] 2 S.C.R. 27, at para. 20. It must therefore be applied in a manner responsive to each child’s particular age, capacity, needs and maturity: see A.C. v. Manitoba (Director of Child and Family Services), [2009] 2 S.C.R. 181, at para. 89. The child’s level of development will guide its precise application in the context of a particular case.\n\nProtecting children through the “best interests of the child” principle is widely understood and accepted in Canada’s legal system: A.B. v. Bragg Communications Inc., [2012] 2 S.C.R. 567, at para. 17. It means “[d]eciding what . . . appears most likely in the circumstances to be conducive to the kind of environment in which a particular child has the best opportunity for receiving the needed care and attention”: MacGyver v. Richards (1995), 22 O.R. (3d) 481 (C.A.), at p. 489.\n\nInternational human rights instruments to which Canada is a signatory, including the Convention on the Rights of the Child, also stress the centrality of the best interests of a child: Can. T.S. 1992 No. 3; Baker, at para. 71. Article 3(1) of the Convention in particular confirms the primacy of the best interests principle: 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 a primary consideration.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9968,7 +9968,7 @@ "text": "Even before it was expressly included in s. 25(1), this Court in Baker identified the “best interests” principle as an “important” part of the evaluation of humanitarian and compassionate grounds. As this Court said in Baker: . . . attentiveness and sensitivity to the importance of the rights of children, to their best interests, and to the hardship that may be caused to them by a negative decision is essential for [a humanitarian and compassionate] decision to be made in a reasonable manner. . . . . . . for the exercise of the discretion to fall within the standard of reasonableness, the decision-maker should consider children’s best interests as an important factor, give them substantial weight, and be alert, alive and sensitive to them. That is not to say that children’s best interests must always outweigh other considerations, or that there will not be other reasons for denying [a humanitarian and compassionate] claim even when children’s interests are given this consideration. However, where the interests of children are minimized, in a manner inconsistent with Canada’s humanitarian and compassionate tradition and the Minister’s guidelines, the decision will be unreasonable. [paras. 74-75]", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -9986,7 +9986,7 @@ "text": "A decision under s. 25(1) will therefore be found to be unreasonable if the interests of children affected by the decision are not sufficiently considered: Baker, at para. 75. This means that decision-makers must do more than simply state that the interests of a child have been taken into account: Hawthorne, at para. 32. Those interests must be “well identified and defined” and examined “with a great deal of attention” in light of all the evidence: Legault v. Canada (Minister of Citizenship and Immigration), [2002] 4 F.C. 358 (C.A.), at paras. 12 and 31; Kolosovs v. Canada (Minister of Citizenship and Immigration), 323 F.T.R. 181, at paras. 9-12.\n\nWhere, as here, the legislation specifically directs that the best interests of a child who is “directly affected” be considered, those interests are a singularly significant focus and perspective: A.C., at paras. 80-81. The Minister’s Guidelines set out relevant considerations for this inquiry: Generally, factors relating to a child’s emotional, social, cultural and physical welfare should be taken into account when raised. Some examples of factors that applicants may raise include but are not limited to: • the age of the child; • the level of dependency between the child and the [humanitarian and compassionate] applicant or the child and their sponsor; • the degree of the child’s establishment in Canada; • the child’s links to the country in relation to which the [humanitarian and compassionate] assessment is being considered; • the conditions of that country and the potential impact on the child; • medical issues or special needs the child may have; • the impact to the child’s education; and • matters related to the child’s gender. (Inland Processing, s. 5.12)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10004,7 +10004,7 @@ "text": "It is difficult to see how a child can be more “directly affected” than where he or she is the applicant. In my view, the status of the applicant as a child triggers not only the requirement that the “best interests” be treated as a significant factor in the analysis, it should also influence the manner in which the child’s other circumstances are evaluated. And since “[c]hildren will rarely, if ever, be deserving of any hardship”, the concept of “unusual and undeserved hardship” is presumptively inapplicable to the assessment of the hardship invoked by a child to support his or her application for humanitarian and compassionate relief: Hawthorne, at para. 9. Because children may experience greater hardship than adults faced with a comparable situation, circumstances which may not warrant humanitarian and compassionate relief when applied to an adult, may nonetheless entitle a child to relief: see Kim v. Canada (Citizenship and Immigration), [2011] 2 F.C.R. 448 (F.C.), at para. 58; UNHCR, Guidelines on International Protection No. 8: Child Asylum Claims under Articles 1(A)2 and 1(F) of the 1951 Convention and/or 1967 Protocol relating to the Status of Refugees, HCR/GIP/09/08, December 22, 2009. Application\n\nIn considering the standard of review, this Court “step[s] into the shoes” of the reviewing court: Agraira, at para. 46. This means that the question for this Court is whether the reviewing court identified the appropriate standard of review and applied it properly: Agraira, at para. 45.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10022,7 +10022,7 @@ "text": "In this case, the Federal Court applied a reasonableness standard. The Federal Court of Appeal, however, concluded that the appropriate standard of review was correctness because there was a certified question. It suggested that this Court’s approach in Agraira, where the standard of review was reasonableness despite the presence of a certified question, was at odds with the prior case law. I respectfully disagree.\n\nThe Federal Court of Appeal refers to one case from this Court to support this point: Hilewitz v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 706. This case is not particularly helpful. It was decided before Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, there was no discussion of the impact of a certified question on the issue of standard of review, and the parties asked that correctness be applied: para. 71. In any event, the case law from this Court confirms that certified questions are not decisive of the standard of review: Baker, at para. 58; Chieu v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 84, at para. 23. As the Court said in Baker, at para. 12, the certification of a question of general importance may be the “trigger” by which an appeal is permitted. The subject of the appeal is still the judgment itself, not merely the certified question. The fact that the reviewing judge in this case considered the question to be of general importance is relevant, but not determinative. Despite the presence of a certified question, the appropriate standard of review is reasonableness: Baker, at para. 62.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10040,7 +10040,7 @@ "text": "Applying that standard, in my respectful view, the Officer failed to consider Jeyakannan Kanthasamy’s circumstances as a whole, and took an unduly narrow approach to the assessment of the circumstances raised in the application. She failed to give sufficiently serious consideration to his youth, his mental health and the evidence that he would suffer discrimination if he were returned to Sri Lanka. Instead, she took a segmented approach, assessed each factor to see whether it represented hardship that was “unusual and undeserved or disproportionate”, then appeared to discount each from her final conclusion because it failed to satisfy that threshold. Her literal obedience to those adjectives, which do not appear anywhere in s. 25(1), rather than looking at his circumstances as a whole, led her to see each of them as a distinct legal test, rather than as words designed to help reify the equitable purpose of the provision. This had the effect of improperly restricting her discretion and rendering her decision unreasonable.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10058,7 +10058,7 @@ "text": "In discussing the effect removal would have on Jeyakannan Kanthasamy’s mental health, for example, the Officer said she “[did] not dispute the psychological report” and “accept[ed] the diagnosis”. The report concluded that he suffered from post-traumatic stress disorder and adjustment disorder with mixed anxiety and depressed mood resulting from his experiences in Sri Lanka, and that his condition would deteriorate if he was removed from Canada. The Officer nonetheless inexplicably discounted the report: . . . the applicant has provided insufficient evidence that he has been or is currently in treatment regarding the aforementioned issues or that he could not obtain treatment if required in his native Sri Lanka or that in doing so it would amount to hardship that is unusual and undeserved or disproportionate.\n\nHaving accepted the psychological diagnosis, it is unclear why the Officer would nonetheless have required Jeyakannan Kanthasamy to adduce additional evidence about whether he did or did not seek treatment, whether any was even available, or what treatment was or was not available in Sri Lanka. Once she accepted that he had post-traumatic stress disorder, adjustment disorder, and depression based on his experiences in Sri Lanka, requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10076,7 +10076,7 @@ "text": "Moreover, in her exclusive focus on whether treatment was available in Sri Lanka, the Officer ignored what the effect of removal from Canada would be on his mental health. As the Guidelines indicate, health considerations in addition to medical inadequacies in the country of origin, may be relevant: Inland Processing, s. 5.11. As a result, the very fact that Jeyakannan Kanthasamy’s mental health would likely worsen if he were to be removed to Sri Lanka is a relevant consideration that must be identified and weighed regardless of whether there is treatment available in Sri Lanka to help treat his condition: Davis v. Canada (Minister of Citizenship and Immigration) (2011), 96 Imm. L.R. (3d) 267 (F.C.); Martinez v. Canada (Minister of Citizenship and Immigration) (2012), 14 Imm. L.R. (4th) 66 (F.C.). As previously noted, Jeyakannan Kanthasamy was arrested, detained and beaten by the Sri Lankan police which left psychological scars. Yet despite the clear and uncontradicted evidence of such harm in the psychological report, in applying the “unusual and undeserved or disproportionate hardship” standard to the individual factor of the availability of medical care in Sri Lanka — and finding that seeking such care would not meet that threshold — the Officer discounted Jeyakannan Kanthasamy’s health problems in her analysis.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10094,7 +10094,7 @@ "text": "And while the Officer did not “dispute the psychological report presented”, she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant”. This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.\n\nThe Officer applied a similarly constricted approach to her analysis of whether Jeyakannan Kanthasamy would face discrimination. The Officer took particular note of s. 25(1.3), which led her to decline to consider elements of his application that related to “fear of persecution, torture, risk to life or cruel and unusual treatment . . . on the basis of his race and nationality” as a young Tamil, which she suggested are part of the determination of refugee status or the pre-removal risk assessment.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10112,7 +10112,7 @@ "text": "As the Federal Court of Appeal concluded in this case, s. 25(1.3) does not prevent the admission into evidence of facts adduced in proceedings under ss. 96 and 97. The role of the officer making a determination under s. 25(1) is to ask whether this evidence, along with any other evidence an applicant wishes to raise, though insufficient to support a s. 96 or s. 97 claim, nonetheless suggests that “humanitarian and compassionate considerations” warrant an exemption from the normal application of the Immigration and Refugee Protection Act . In other words, the officer does not determine whether a well-founded fear of persecution, risk to life, and risk of cruel and unusual treatment or punishment has been established — those determinations are made under ss. 96 and 97 — but he or she can take the underlying facts into account in determining whether the applicant’s circumstances warrant humanitarian and compassionate relief.\n\nThe Officer agreed to consider the hardship Jeyakannan Kanthasamy would likely endure as discrimination in Sri Lanka against young Tamil men. She also accepted evidence that there was discrimination against Tamils in Sri Lanka, particularly against young Tamil men from the north, who are routinely targeted by police. In her view, however, young Tamils are targeted only where there is suspicion of ties to the Liberation Tigers of Tamil Eelam, and the government had been making efforts to improve the situation for Tamils. She concluded that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10130,7 +10130,7 @@ "text": "This effectively resulted in the Officer concluding that, in the absence of evidence that Jeyakannan Kanthasamy would be personally targeted by discriminatory action, there was no evidence of discrimination. With respect, the Officer’s approach failed to account for the fact that discrimination can be inferred where an applicant shows that he or she is a member of a group that is discriminated against. Discrimination for the purpose of humanitarian and compassionate applications “could manifest in isolated incidents or permeate systemically”, and even “[a] series of discriminatory events that do not give rise to persecution must be considered cumulatively”: Jamie Chai Yun Liew and Donald Galloway, Immigration Law (2nd ed. 2015), at p. 413, citing Divakaran v. Canada (Minister of Citizenship and Immigration), 2011 FC 633.\n\nHere, however, the Officer required Jeyakannan Kanthasamy to present direct evidence that he would face such a risk of discrimination if deported. This not only undermines the humanitarian purpose of s. 25(1), it reflects an anemic view of discrimination that this Court largely eschewed decades ago: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at pp. 173-74; British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3; Quebec (Attorney General) v. A, [2013] 1 S.C.R. 61, at paras. 318-19 and 321-38.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10148,7 +10148,7 @@ "text": "Even the Guidelines, expressly relying on this Court’s decision in Andrews, encourage an approach to discrimination that does not require evidence that the applicant will be personally targeted: 5.16. [Humanitarian and compassionate] and hardship: Factors in the country of origin to be considered While [ss. 96 and 97] factors may not be considered, the decision-maker must take into account elements related to the hardships that affect the foreign national. Some examples of what those “hardships” may include are: . . . • discrimination which does not amount to persecution; • adverse country conditions that have a direct negative impact on the applicant. . . . Discrimination Discrimination is: A distinction based on the personal characteristics of an individual that results in some disadvantage to that individual. In Andrews, [the] Court wrote: “Discrimination may be described as 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.” (Inland Processing, s. 5.16)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10166,7 +10166,7 @@ "text": "As these passages suggest, applicants need only show that they would likely be affected by adverse conditions such as discrimination. Evidence of discrimination experienced by others who share the applicant’s identity is therefore clearly relevant under s. 25(1), whether or not the applicant has evidence of being personally targeted, and reasonable inferences can be drawn from those experiences. Rennie J. persuasively explained the reasons for permitting reasonable inferences in such circumstances in Aboubacar v. Canada (Minister of Citizenship and Immigration), 2014 FC 714: While claims for humanitarian and compassionate relief under section 25 must be supported by evidence, there are circumstances where the conditions in the country of origin are such that they support a reasoned inference as to the challenges a particular applicant would face on return . . . . This is not speculation, rather it is a reasoned inference, of a non-speculative nature, as to the hardship an individual would face, and thus provides an evidentiary foundation for a meaningful, individualized analysis . . . . [para. 12 (CanLII)]\n\nFinally, even though Jeyakannan Kanthasamy’s current age makes this issue one that no longer requires intervention, the Officer’s analysis of the “best interests” factor cannot be characterized as anything other than perfunctory. She simply stated, in a single paragraph, that Jeyakannan Kanthasamy’s best interests lay in returning to Sri Lanka where he had grown up and where his immediate family continued to reside. In my view, this fails to accord with the “serious weight and consideration” this Court in Baker identified as essential to a proper appreciation of a child’s best interests: para. 65.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10184,7 +10184,7 @@ "text": "At no point did the Officer appear to turn her mind to how his status as a child affected the evaluation of the other evidence raised in his application. Instead, she atomized her evaluation of each of the other elements of his application, referring to his status as a child only in isolation. In her assessment of his level of establishment in Canada, for example, she wrote: . . . a person in Canada making a claim to refugee status is afforded the tools such as a study permit that would allow one to be self-sufficient and to integrate into the Canadian community. Therefore, in the case at hand, it is expected that a certain level of establishment would have taken place during the applicant’s stay in Canada. It is understandable that [Jeyakannan Kanthasamy] would like to remain in Canada and I accept that [Jeyakannan Kanthasamy’s] removal to Sri Lanka would be an inconvenience; however, I am not satisfied that he has established himself to such a degree that return to Sri Lanka would amount to unusual and undeserved or disproportionate hardship. [Emphasis added.] Nowhere did the Officer ask whether the effect of separating Jeyakannan Kanthasamy from the people he was close to in Canada would be magnified by the fact that his relationships with them developed when he was a teenager. This approach is inconsistent with how hardship should be uniquely addressed for children.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10202,7 +10202,7 @@ "text": "Moreover, by evaluating Jeyakannan Kanthasamy’s best interests through the same literal approach she applied to each of his other circumstances — whether the hardship was “unusual and undeserved or disproportionate” — she misconstrued the best interests of the child analysis, most crucially disregarding the guiding admonition that “[c]hildren will rarely, if ever, be deserving of any hardship”: Hawthorne, at para. 9. See also Williams v. Canada (Minister of Citizenship and Immigration), 2012 FC 166, at paras. 64-67 (CanLII).\n\nFinding that no single factor amounted to hardship that was “unusual and undeserved or disproportionate”, the Officer ultimately concluded that humanitarian and compassionate relief was not warranted. But these three adjectives are merely descriptive, not separate legal thresholds to be strictly construed. Finally, the Officer not only unreasonably discounted both the psychological report and the clear and uncontradicted evidence of a risk of discrimination, she avoided the requisite analysis of whether, in light of the humanitarian purpose of s. 25(1) of the Immigration and Refugee Protection Act , the evidence as a whole justified relief. This approach unduly fettered her discretion and, in my respectful view, led to its unreasonable exercise.\n\nI would therefore allow the appeal with costs, set aside the Officer’s decision, and remit the matter for reconsideration in light of these reasons. The reasons of Moldaver and Wagner JJ. were delivered by Moldaver J. (dissenting) — I. Overview", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10220,7 +10220,7 @@ "text": "Jeyakannan Kanthasamy applied for a humanitarian and compassionate (“H&C”) exemption under s. 25(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). The exemption would have allowed him to apply for permanent resident status from within Canada. His application was rejected. He seeks to overturn that decision on the grounds that the Senior Immigration Officer (the “Officer”) applied the wrong legal test and unreasonably denied his application.\n\nSection 25(1) is a safety valve that supplements the two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. It empowers the Minister of Citizenship and Immigration (the “Minister”) to grant applicants relief from the requirements of the IRPA when such relief is justified by H&C considerations. Properly construed, it provides a flexible means of relief for applicants whose cases are exceptional and compelling. For reasons that will become apparent, I am of the view that in deciding whether to grant relief under s. 25(1), decision makers must determine whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought.\n\nMeasured against this standard, and bearing in mind the deference that is owed to decisions made under s. 25(1), the Officer’s decision was reasonable. Accordingly, I would uphold that decision and dismiss Mr. Kanthasamy’s appeal. II. Factual Background", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10238,7 +10238,7 @@ "text": "Mr. Kanthasamy is a Tamil who grew up in northern Sri Lanka during that country’s civil war. Although the war ended in 2009, the situation in Sri Lanka remained unstable, and young Tamil men in particular faced a heightened risk of being subjected to discriminatory security measures. Mr. Kanthasamy’s family feared for his safety and arranged to send him to Canada. He arrived here using a false passport in April 2010. He was 16 years old. A. Procedural History\n\nOne month following Mr. Kanthasamy’s arrival in Canada, he made a claim for refugee protection. That claim was denied in February 2011. In denying his claim, the Refugee Protection Division tribunal determined that he did not have a well-founded fear of persecution in Sri Lanka, and that removal to Sri Lanka would not subject him personally to a risk of death, torture, or cruel and unusual treatment or punishment. His application seeking leave to have this decision judicially reviewed was dismissed in May 2011.\n\nIn July 2011, Mr. Kanthasamy applied under s. 25(1) to be exempted from the requirement that he apply for permanent resident status from outside Canada (the “H&C application”). His H&C application was received one day before his 18th birthday. He also applied for a Pre-Removal Risk Assessment (“PRRA”) in August 2011.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10256,7 +10256,7 @@ "text": "Both his PRRA and H&C application were denied in January 2012. In the PRRA decision, the immigration officer concluded that Mr. Kanthasamy would not face “more than a mere possibility of persecution in Sri Lanka”, and that, on balance, he was not likely “to face a danger of torture, or a risk to life, or a risk of cruel and unusual treatment or punishment”. Mr. Kanthasamy initially sought leave for judicial review of his PRRA denial, but in March 2012, after securing an agreement from the Minister to reconsider his H&C application, he withdrew his application for leave.\n\nOn reconsideration, Mr. Kanthasamy’s H&C application was again denied. Initial reasons for decision were provided in April 2012 and an addendum was released in July 2012. These two sets of reasons comprise the Officer’s decision. Mr. Kanthasamy challenged that decision by way of judicial review in the Federal Court. His application for judicial review was dismissed, as was his subsequent appeal to the Federal Court of Appeal. He now appeals with leave to this Court. B. Facts Underlying Mr. Kanthasamy’s H&C Application\n\nThe factual record underlying Mr. Kanthasamy’s H&C application can be distilled into four categories: (1) his past mistreatment by Sri Lankan authorities; (2) the conditions he would face if he were removed to Sri Lanka; (3) the psychological consequences of his return to Sri Lanka; and (4) his establishment in Canada. (1) Mistreatment by Sri Lankan Authorities", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10274,7 +10274,7 @@ "text": "The evidence of past mistreatment focuses on two incidents which occurred shortly before Mr. Kanthasamy left Sri Lanka. In March 2010, he was arrested at his home and taken to an army camp in his village, where he was detained for one day. During his detention, he was held in a dark room for three to four hours. Soldiers visited him sporadically and touched him with their guns, kicked him, and threatened to kill him if he did not cooperate. The soldiers wanted Mr. Kanthasamy to identify supporters of the Liberation Tigers of Tamil Eelam (“LTTE”), an anti-government militant group. He was ultimately released with the warning that he would be re-arrested if he helped to conceal LTTE supporters in his village.\n\nAfter his release, members of a pro-government paramilitary group came to his home, questioned him, and pressured him to join their group. They warned Mr. Kanthasamy’s father to watch him, as the LTTE was trying to recruit young Tamil men. His father was concerned for Mr. Kanthasamy’s safety, and arranged to send him from his home village in northern Sri Lanka to the capital, Colombo, where he could obtain passage to Canada.\n\nThe second incident of mistreatment occurred in Colombo in April 2010. Mr. Kanthasamy was arrested by police and detained for one day. During his detention, he was threatened, physically assaulted, and interrogated once again about any involvement with the LTTE. He was released after paying money to the police, but was warned that he could not stay in Colombo. Shortly after this incident, Mr. Kanthasamy made his way to Canada using a false passport. (2) Present-Day Conditions in Sri Lanka", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10292,7 +10292,7 @@ "text": "The record contains conflicting evidence about conditions in Sri Lanka and the extent to which the treatment of Tamils had improved since the end of the civil war and the defeat of the LTTE in 2009. Mr. Kanthasamy put forward evidence suggesting that young Tamil men in northern Sri Lanka still faced “frequent harassment” and “abusive behaviour” by government and paramilitary forces, and that security measures targeted Tamils in a disproportionate and discriminatory manner. He also submitted evidence that the Sri Lankan government continued to engage in torture and that some failed Tamil asylum seekers had faced arbitrary arrest and torture upon their return to Sri Lanka. On the other hand, two research packages prepared by the Immigration and Refugee Board, which summarized reports from news, academic and other sources on the treatment of Tamils in Sri Lanka, contained evidence that the harassment and government surveillance of Tamils had decreased since 2009. (3) Psychological Consequences of Return to Sri Lanka\n\nMr. Kanthasamy was examined by a clinical psychologist in March 2012, and he submitted a psychological assessment in support of his H&C application. The psychologist, Dr. Kanagaratnam, outlined Mr. Kanthasamy’s history in Sri Lanka, including the two instances of arrest and interrogation. Mr. Kanthasamy described to her how the ongoing immigration proceedings had caused him to experience difficulty sleeping, difficulties with concentration and recall, and a reduced appetite. She noted that he also reported symptoms of hyper-arousal and hyper-vigilance when he saw military vehicles or heard the sounds of aircraft. According to Mr. Kanthasamy, he began experiencing these additional symptoms one to three months prior to his psychological evaluation.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10310,7 +10310,7 @@ "text": "Dr. Kanagaratnam diagnosed Mr. Kanthasamy with anxiety, depression and post-traumatic stress disorder. Noting that “events that evoke elements of past trauma” can trigger the re-emergence of these conditions, she concluded that due to “a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition [would] further deteriorate psychologically if he [were] to be deported” (emphasis added). (4) Establishment in Canada\n\nMr. Kanthasamy’s parents and three of his four siblings live in Sri Lanka. He had been living in Canada with his uncle, aunt and three cousins. To establish the strength of his attachment to Canada, Mr. Kanthasamy submitted evidence that he was “very close” to his Canadian relatives and they would be “very upset” if he had to return to Sri Lanka. At the time of his H&C application, he was enrolled in high school, worked part-time in his uncle’s hair salon and volunteered at a local temple. He had spent approximately 16 months in Canada. III. Decisions Below A. Decision on Mr. Kanthasamy’s H&C Application\n\nMr. Kanthasamy raised four factors in support of his application for relief under s. 25(1): (1) personalized risk of discrimination; (2) establishment in Canada; (3) the psychological impact of removal from Canada; and (4) his best interests as a child.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10328,7 +10328,7 @@ "text": "In her reasons for dismissing his H&C application, the Officer stated that Mr. Kanthasamy bore the burden of establishing that the “hardship . . . would be . . . unusual and undeserved or . . . disproportionate”. This test initially appeared in the Minister’s immigration processing manual some three decades ago (Employment and Immigration Canada, Immigration Manual (1986), s. 1.39). It has been repeatedly applied by the Federal Court since then (see, for example, Lim v. Canada (Minister of Citizenship and Immigration), 2002 FCT 956; Pan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1303; Rizvi v. Canada (Minister of Citizenship and Immigration), 2009 FC 463). The current manual employs the same hardship test and provides a non-exhaustive list of factors for immigration officers to consider when assessing applications under s. 25(1) (Citizenship and Immigration Canada, Inland Processing, “IP 5: Immigrant Applications in Canada made on Humanitarian or Compassionate Grounds”, ss. 5.10 and 5.11 (the “Guidelines”)). It is against this backdrop that the Officer evaluated the factors raised by Mr. Kanthasamy.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10346,7 +10346,7 @@ "text": "The Officer accepted that young Tamil males continued to face discriminatory treatment by authorities. However, she noted that the focus of the government’s attention was on suspected LTTE supporters and that Mr. Kanthasamy had failed to present sufficient evidence that he would be personally targeted by security forces. While recognizing Mr. Kanthasamy’s establishment in Canada, the Officer observed that it had occurred while he was under a removal order, and concluded that returning to Sri Lanka would not rise to the level of hardship. In evaluating the psychological evidence, the Officer accepted Dr. Kanagaratnam’s medical diagnoses, but was not satisfied that Mr. Kanthasamy would be unable to obtain treatment for his conditions in Sri Lanka. Regarding “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to Sri Lanka where he would have the care and support of his parents and siblings.\n\nReviewing the record in its entirety, the Officer was unpersuaded that return to Sri Lanka would subject Mr. Kanthasamy to unusual and undeserved or disproportionate hardship. She concluded that H&C considerations did not justify granting an exemption. B. Judicial Review and Appeal\n\nOn judicial review, Mr. Kanthasamy challenged the Officer’s decision on several grounds (2013 FC 802, [2014] 3 F.C.R. 438). Among them, he claimed the Officer unreasonably concluded that he would not face a personalized risk of discrimination in Sri Lanka. Further, she unreasonably discounted evidence relating to his establishment in Canada and the psychological impact of deportation to Sri Lanka. Finally, she did not adequately consider his best interests as a child.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10364,7 +10364,7 @@ "text": "Kane J. dismissed the application for judicial review. In her view, the Officer’s conclusions on these points were reasonable. The Federal Court of Appeal unanimously dismissed Mr. Kanthasamy’s appeal (2014 FCA 113, [2015] 1 F.C.R. 335, Blais C.J., Sharlow and Stratas JJ.A.). Writing for the court, Stratas J.A. concluded that subject to this Court holding otherwise, the hardship test reflected the appropriate standard to be applied under s. 25(1) (paras. 47-49). He cautioned against applying the list of factors in the Guidelines as a closed list, but concluded the Officer had not done so in this case (paras. 51-53). The Officer had instead weighed the evidence and come to a reasonable decision. IV. Analysis\n\nThis case raises two issues. The first issue is one of statutory interpretation: the meaning of the phrase “justified by humanitarian and compassionate considerations” in s. 25(1) of the IRPA . At the time of Mr. Kanthasamy’s application, s. 25(1) read as follows: 25. (1) The Minister . . . may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10382,7 +10382,7 @@ "text": "My colleague Justice Abella has considered the meaning of the phrase in question and I agree with much of what she says. With respect, however, I cannot agree with the test she proposes for granting relief under s. 25(1). The scheme of the IRPA and the intention of Parliament in enacting s. 25(1) and its predecessors all suggest that s. 25(1) is meant to provide a flexible — but exceptional — mechanism for relief. Giving it an overly broad interpretation risks creating a separate, freestanding immigration process, something Parliament clearly did not intend.\n\nThe second issue is whether, in light of the meaning of s. 25(1), the Officer’s decision to deny Mr. Kanthasamy an exemption was reasonable. Unlike my colleague, I am respectfully of the view that it was. A. Standard of Review\n\nI find it unnecessary to decide whether the standard of review applicable to the Officer’s interpretation of s. 25(1) is correctness or reasonableness. For reasons that will become apparent, had she applied the test set out in these reasons, she would inevitably have come to the same result. B. The Role of Section 25(1) Within the IRPA", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10400,7 +10400,7 @@ "text": "The IRPA and its regulations create a carefully tailored scheme, with two normal streams by which foreign nationals can come to Canada permanently: the immigration classes and the refugee process. Within each stream, Parliament has established a set of criteria that reflect Canada’s immigration and refugee policy goals and international obligations. These criteria anticipate most circumstances in which foreign nationals should be admitted to Canada. Parliament has also established procedures for determining whether an applicant meets these criteria, and procedural safeguards designed to ensure that these criteria have been properly applied, such as internal appeals, judicial review and the PRRA process.\n\nHowever, as with any administrative scheme, Parliament recognized that cases could arise in which the strict application of the rules would not reflect Canada’s policy goals, or would lead to an arbitrary or inhumane result. With this in mind, it empowered the Minister to grant some applicants special relief if they could convince the Minister that the relief sought was “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ).", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10418,7 +10418,7 @@ "text": "The legislative history of the H&C provision makes clear that the provision was not intended as a separate category for admission to Canada, but rather as a safety valve for exceptional cases (see House of Commons Debates, vol. XII, 1st Sess., 27th Parl., February 20, 1967, at pp. 13267-68). Though the terms “humanitarian” and “compassionate” have remained unchanged since the provision was first enacted, the provision has been debated, revised and re-enacted multiple times (see Immigration Appeal Board Act, S.C. 1966-67, c. 90, s. 15(1)(b)(ii); Immigration Act, R.S.C. 1985, c. I-2, s. 114(2); Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 25(1) ; Balanced Refugee Reform Act, S.C. 2010, c. 8, s. 4). Notably, when Parliament amended the provision in 2010, it did so with a view to emphasizing the provision’s original purpose. As Peter MacDougall, the Director General of Refugees at the Department of Citizenship and Immigration, put it at the time: . . . the original intent of the H and C provision was to provide the government with the flexibility to approve exceptional and compelling cases not anticipated in the Immigration and Refugee Protection Act . It was never intended to be an alternate immigration stream or an appeal mechanism for failed asylum claimants. It should be reserved for exceptional cases. But what has happened is that some failed asylum claimants use the humanitarian and compassionate provision in another process to try to remain in Canada. In fact, more than half of the humanitarian and compassionate backlog is now made up of failed asylum claimants. [Emphasis added.] (House of Commons, Standing Committee on Citizenship and Immigration, Evidence, No. 19, 3rd Sess., 40th Parl., May 27, 2010, at 15:40)", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10436,7 +10436,7 @@ "text": "Mr. MacDougall’s comments pertained, inter alia, to what is now s. 25(1.3) of the IRPA , which reads as follows: 25. . . . (1.3) In examining the request of a foreign national in Canada, the Minister may not consider the factors that are taken into account in the determination of whether a person is a Convention refugee under section 96 or a person in need of protection under subsection 97(1) but must consider elements related to the hardships that affect the foreign national. The interpretation of this provision arises in this case. In the Federal Court of Appeal, Stratas J.A. concluded that it was “not meant to change the overall standard” for granting s. 25(1) relief (para. 66). As he explained, “the evidence adduced in previous proceedings under sections 96 and 97 . . . is admissible in subsection 25(1) proceedings” (para. 73). Section 25(1.3) requires officers to “assess that evidence through the lens of the subsection 25(1) test” and “not to undertake another section 96 or 97 risk assessment or substitute [their] decision for the Refugee Protection Division’s” (paras. 73-74).\n\nI agree with Stratas J.A.’s interpretation of s. 25(1.3). This subsection reminds decision makers that the H&C provision is not meant to be a second refugee proceeding with a lower threshold for admission. However, it does not prevent decision makers from looking at the facts and circumstances raised in the ss. 96 and 97 proceedings.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10454,7 +10454,7 @@ "text": "In keeping with this legislative history, courts have recognized the exceptional nature of the H&C provision. This Court has described it as a “plea to the executive branch for special consideration” (Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 64) and as “involv[ing] the exercise of considerable discretion” (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 31). The Federal Court at both the trial and appellate level has emphasized that the provision is both exceptional and discretionary (see, for example, Paz v. Canada (Minister of Citizenship and Immigration), 2009 FC 412, at para. 15; Legault v. Canada (Minister of Citizenship and Immigration), 2002 FCA 125, [2002] 4 F.C. 358 (leave to appeal refused, [2002] 4 S.C.R. vi), at para. 15; Pannu v. Canada (Minister of Citizenship and Immigration), 2006 FC 1356, at para. 29 (CanLII)).\n\nIn short, s. 25(1) is intended to provide flexibility and a means of relief for applicants who do not fall strictly within the rules governing the admission of foreign nationals to Canada. That said, Parliament did not intend to provide relief on a routine basis. Section 25(1) was meant to operate as an exception, not the rule. C. The Approach to Evaluating H&C Applications Requires Flexibility and Stringency", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10472,7 +10472,7 @@ "text": "As noted, s. 25(1) empowers the Minister to grant applicants relief from the requirements of the IRPA when such relief is “justified by humanitarian and compassionate considerations” (IRPA , s. 25(1) ). The Minister has described the approach immigration officers should take under s. 25(1) in the Guidelines. The Guidelines require applicants to demonstrate that denial of relief would cause them “unusual and undeserved” or “disproportionate” hardship. Though the Federal Courts have adopted this test, as I have observed, it did not originate there or in Parliament. Instead, it appeared in the Minister’s immigration manual as early as 1986.\n\nTo recapitulate, the test for H&C relief must balance the dual characteristics of stringency and flexibility. The hardship test is a good test in that it achieves the degree of stringency required to grant H&C relief. If an applicant can demonstrate “unusual and undeserved or disproportionate hardship”, he or she should be granted relief. With respect, however, the test falls down on the flexibility side. Put simply, it risks excluding or diminishing the weight that some factors may deserve in deciding whether H&C relief should be granted.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10490,7 +10490,7 @@ "text": "In the Federal Court of Appeal, Stratas J.A. described the hardship test as “requiring proof that the applicant will personally suffer unusual and undeserved, or disproportionate hardship arising from the application of . . . the normal rule” (para. 41 (emphasis added)). Read literally, this test is future-oriented and focuses solely on the applicant. It asks how the applicant is likely to be affected in the future if relief is denied. As such, it runs the risk of excluding from consideration otherwise relevant H&C factors such as past hardship the applicant may have suffered or the impact that denying relief is likely to have on persons other than the applicant.\n\nThough the Guidelines direct decision makers to consider a broad range of factors such as family violence and establishment in Canada, the hardship lens might lead a decision maker to disregard these factors or give them less weight than they deserve. For example, a future-oriented analysis may not adequately account for the past hardship of sponsored spouses who leave abusive spouses or whose spouses become ineligible to sponsor them by virtue of a conviction involving domestic violence (H. Neufeld, “Inadequacies of the Humanitarian and Compassionate Procedure for Abused Immigrant Spouses” (2009), 22 J.L. & Soc. Pol’y 177, at p. 205). Likewise, a decision maker applying the hardship test literally might disregard the impact denying relief would have on other adults who are dependent on the applicant for their care and well-being (see, for example, Jacob v. Canada (Minister of Citizenship and Immigration), 2012 FC 1382, 423 F.T.R. 1, at para. 33).", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10508,7 +10508,7 @@ "text": "Neither the future-oriented analysis nor the exclusive focus on the applicant flows from the statute. Section 25(1) does not limit when the relevant H&C considerations must occur; nor does it require that they be viewed only from the applicant’s perspective. It asks only that decision makers look at H&C considerations relating to the applicant. Section 25(1) is framed in broad terms because it is impossible to foresee all situations in which it might be appropriate to grant relief to someone seeking to enter or remain in Canada. A more comprehensive approach is therefore required.\n\nGiven that s. 25(1) is intended to act as a safety valve by providing flexibility to the normal operation of the IRPA , the test should reflect the broad range of factors that may be relevant. As the Minister is empowered to grant an exceptional remedy, the test should also convey the level of intensity that those factors must reach — that is, the stringent threshold for relief.\n\nBearing in mind the purpose and context of s. 25(1), and the fact that the hardship test used to date may, in some circumstances, be overly restrictive, I would reframe the test for granting relief as follows: whether, having regard to all of the circumstances, including the exceptional nature of H&C relief, the applicant has demonstrated that decent, fair-minded Canadians would find it simply unacceptable to deny the relief sought. To be simply unacceptable, a case should be sufficiently compelling to generate a broad consensus that exceptional relief should be granted.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10526,7 +10526,7 @@ "text": "This test maintains the stringency of the hardship test — but does not exceed it. The hardship test requires applicants to demonstrate “unusual and undeserved or disproportionate” hardship. If an applicant meets the hardship test, he or she should be granted relief. To do otherwise would be simply unacceptable.\n\nAt the same time, it is more flexible than the hardship test. It asks decision makers to turn their minds to all of the relevant circumstances when deciding whether refusing relief would be “simply unacceptable”. This prevents decision makers from excluding relevant H&C considerations because they do not fit within the future-oriented hardship framework or because they do not involve hardship experienced solely by the applicant.\n\nThe “simply unacceptable” test I am proposing should not be seen as wordsmithing; nor, in my view, will it lead to more confusion than clarity. It uses concepts that are well-understood and regularly applied in Canadian law. For example, the test for whether extradition would violate s. 7 of the Canadian Charter of Rights and Freedoms “on account of the penalty which may be imposed in the requesting state” is whether the penalty would be “simply unacceptable” (Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, at p. 849). Similarly, in criminal law, abuse of process may be established where conduct would violate the community’s sense of fair play and decency (R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at para. 41).", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10544,7 +10544,7 @@ "text": "The appellant submits that the hardship test is too stringent and proposes that the test found in Chirwa v. Canada (Minister of Citizenship and Immigration) (1970), 4 I.A.C. 338, be adopted as a less stringent alternative. He argues that relief should be granted in circumstances which “would excite in a reasonable [person] in a civilized community a desire to relieve the misfortunes of another” (Chirwa, at p. 350).\n\nMy colleague discusses the Chirwa test at length. She acknowledges that it was developed for a different decision-making context than the hardship test (para. 20), but appears to conclude nonetheless that the correct approach is to import it into s. 25(1) and apply it in conjunction with the hardship test (paras. 30-33). In her view, the requirements of the hardship test — that the hardship must be unusual and undeserved or disproportionate — should be treated as “instructive but not determinative”, so that s. 25(1) may “respond more flexibly to the equitable goals of the provision” (para. 33).\n\nWith respect, the test that my colleague proposes is amorphous. It does not provide any guidance to decision makers as to the kinds of factors outside the hardship test that would be sufficient to justify relief. Even more problematic, by introducing equitable principles, it runs the risk of watering down the stringency of the hardship test. Relief could be granted in cases which arouse strong feelings of sympathy in an individual decision maker, but which do not reach the stringent standard that the hardship test demands. Setting the bar this low is inconsistent with Parliament’s goal and risks turning s. 25(1) into an alternate immigration scheme, or an appeal mechanism for good faith but unsuccessful refugee claimants.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10562,7 +10562,7 @@ "text": "The threshold that denial of relief must, in the circumstances, be simply unacceptable to decent, fair-minded Canadians aware of the exceptional nature of H&C relief provides the appropriate mix of flexibility and stringency. Canada is a desirable place to live. It is a thriving democracy with a high standard of living, a relatively low rate of violent crime and a generous social safety net. Understandably, many people want to come to Canada, and it is natural to feel sympathy for those whose home countries do not have the same advantages. However, most decent, fair-minded Canadians aware of the exceptional nature of H&C relief would not find it simply unacceptable that we exclude individuals who do not meet our legal requirements, even if such persons evoke our sympathy and would be better off here than in their home countries.\n\nWith these thoughts in mind, I turn to the review of the Officer’s decision in this case. D. The Reasonableness of the Officer’s Decision\n\nMr. Kanthasamy submits, and my colleague agrees, that the Officer did not exercise her discretion reasonably in denying his H&C application. According to my colleague, the Officer erred in her overall approach by considering the relevant factors on a piecemeal basis and by treating the hardship test, identified in the Guidelines, as an all-inclusive “distinct legal test”, thereby fettering her discretion (para. 45). Additionally, she takes issue with certain aspects of the Officer’s reasons, maintaining that the Officer failed to properly assess several points raised by Mr. Kanthasamy.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10580,7 +10580,7 @@ "text": "With respect, I cannot agree. In my view, the Officer’s decision falls within the range of possible, acceptable outcomes which are defensible in respect of the facts and law, and was therefore reasonable. Decision making under s. 25(1) is highly discretionary and is entitled to deference. Care must be taken not to overly dissect or parse an officer’s reasons. Rather, reasonableness review entails respectful attention to the reasons offered or which could be offered in support of a decision (Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48; Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 11-12).\n\nIn particular, I am concerned that my colleague has not given the Officer’s reasons the deference which, time and again, this Court has said they deserve. In her reasons, she parses the Officer’s decision for legal errors, resolves ambiguities against the Officer, and reweighs the evidence. Lest we be accused of adopting a “do as we say, not what we do” approach to reasonableness review, this approach fails to heed the admonition in Newfoundland and Labrador Nurses — that reviewing courts must be cautious about substituting their own view of the proper outcome by designating certain omissions in the reasons to be fatal (para. 17). As is the case with every other court, this Court has no licence to find an officer’s decision unreasonable simply because it considers the result unpalatable and would itself have come to a different result. (1) The Officer Considered the Evidence as a Whole and Did Not Fetter Her Discretion", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10598,7 +10598,7 @@ "text": "As I have stated, to obtain H&C relief, an applicant bears the onus of demonstrating, having regard to all of the circumstances, that decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought. In evaluating the application, the decision maker must not segment the evidence and require that each piece either rise above this threshold or be discounted entirely. Rather, the decision maker must fairly consider the totality of the circumstances and base the disposition on the evidence as a whole. Likewise, the decision maker must not fetter his or her discretion by applying the Guidelines — the “unusual and undeserved or disproportionate hardship” framework — as a strict legal test to the exclusion of all other factors. In my view, the Officer’s decision does not fall down on either basis.\n\nIt is true that the Officer’s reasons address each of Mr. Kanthasamy’s submissions separately, and discuss the level of hardship associated with each factor. This is not an example of improper segmentation, however, but rather an uncontroversial method of legal analysis. In fact, had the Officer failed to discuss each factor individually, and instead simply listed the facts and stated her conclusion on the evidence as a whole, this appeal might well have been before us on the basis of insufficient reasons.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10616,7 +10616,7 @@ "text": "The issue, therefore, is not whether the Officer analyzed the factors individually, but whether in doing so she failed to step back and consider the evidence as a whole. I find no such error in the Officer’s reasons. She stated that she “reviewed and considered the grounds” raised by Mr. Kanthasamy, and “considered all information and evidence regarding this application in its entirety”. In the July addendum, she listed seven additional pieces of evidence received from Mr. Kanthasamy, and stated that she “reviewed all of the evidence mentioned [therein] in conjunction with the evidence [she] previously reviewed”. It is apparent that the Officer gave careful consideration to the full record in reaching her determination.\n\nMoreover, the Officer’s use of the “unusual and undeserved or disproportionate hardship” standard to guide her analysis was entirely appropriate. As I have stated above, while the Guidelines do not establish the applicable test, the hardship analysis is neither irrelevant nor inappropriate. The degree of hardship demonstrated by the applicant is highly probative. In many cases, a hardship analysis may be dispositive. The decision maker must simply avoid applying the standard from the Guidelines in a way that fetters his or her discretion or causes relevant evidence to be improperly discounted.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10634,7 +10634,7 @@ "text": "In my view, the Officer gave full and fair consideration to each of the factors supporting Mr. Kanthasamy’s application. On the issue of personalized risk, she recognized the conflicting evidence of present-day conditions in Sri Lanka, and accepted that challenges remained. She found that while some Tamils were singled out by the government, this attention was primarily focused on suspected LTTE supporters. She concluded that there was insufficient evidence that Mr. Kanthasamy would personally be discriminated against.\n\nOn the issue of establishment, the Officer accepted the evidence of Mr. Kanthasamy’s relationships with friends and relatives in Canada, his integration into his school and religious communities, and his employment. She found that his degree of establishment was “commendable”, and recognized that removal to Sri Lanka would involve some hardship. However, she concluded that his establishment in Canada — for approximately two years, and all while under a removal order — was no more than would be expected under the circumstances and was not so compelling that it justified an H&C exemption.\n\nOn the psychological evidence, the Officer expressed concern that the psychologist’s conclusions relied heavily on Mr. Kanthasamy’s own observations and explanations, which were not otherwise in the record. While the Officer ultimately accepted the medical diagnoses, she found that there was no evidence that mental health treatment would be unavailable in Sri Lanka, and therefore the psychological evidence did not establish hardship warranting H&C relief.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10652,7 +10652,7 @@ "text": "On “the best interests of the child”, the Officer concluded that it was in Mr. Kanthasamy’s best interests to return to his immediate family in Sri Lanka. His relationships with friends and family in Canada might be weakened, but they could nonetheless be maintained even after his removal.\n\nTaken as a whole, the Officer’s decision denying Mr. Kanthasamy’s H&C application is transparent. She provided intelligible reasons for concluding that he did not meet his onus of establishing, on balance, that he should be permitted to apply for permanent residency from within Canada for H&C reasons. She did not use the hardship framework in a way that fettered her discretion or caused her to discount relevant evidence. Her conclusions are reasonable, and well-supported by the record before her.\n\nAt bottom, it was open to the Officer to find that the record did not justify relief under s. 25(1). While aspects of Mr. Kanthasamy’s situation warrant sympathy, sympathetic circumstances alone do not meet the threshold required to obtain relief. I find no error in the Officer’s approach requiring this Court’s intervention. (2) The Officer’s Analysis of the Psychological Evidence, the Risk of Discrimination, and the Best Interests of the Child\n\nMr. Kanthasamy alleges that the Officer failed to properly assess the psychological evidence, the issue of discrimination, and his best interests as a child. With respect, I disagree. As I have already indicated, decision making under s. 25(1) is entitled to deference, and in line with that approach, Mr. Kanthasamy’s arguments do not justify setting aside the Officer’s decision. (a) The Psychological Evidence", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10670,7 +10670,7 @@ "text": "Mr. Kanthasamy submits that the Officer failed to adequately consider the impact of removal on his mental health. By focusing exclusively on the availability of treatment in Sri Lanka, she discounted the evidence that his return to Sri Lanka would harm his mental health. Mr. Kanthasamy asserts that her failure to consider this aspect of the evidence rendered her decision unreasonable.\n\nI would not give effect to this submission. While I agree that the Officer’s reasons could have more fully engaged with the psychological evidence, and that it would have been helpful had she specifically addressed the issue of the impact of removal on Mr. Kanthasamy’s mental health, her failure to do so does not render her decision unreasonable.\n\nThe Officer rejected the premise underlying the psychologist’s opinion on the harm of deportation, and was therefore entitled to reject the opinion itself. The psychologist concluded that “[w]ith what seems to be a realistic and imminent threat to his safety, it is most likely that [Mr. Kanthasamy’s] condition will further deteriorate psychologically if he was to be deported from Canada” (emphasis added). The phrasing of this opinion reveals that the ultimate conclusion — that Mr. Kanthasamy’s mental health would deteriorate upon his return to Sri Lanka — is premised on the assumption that removal poses a “realistic and imminent threat to his safety”.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10688,7 +10688,7 @@ "text": "The Officer rejected this underlying assumption. She found that removal would not pose a serious risk to Mr. Kanthasamy’s safety. There was sufficient evidence in the record on conditions in Sri Lanka to support this conclusion. Though she did not say so expressly, by logical implication, it was on this basis that she rejected the psychologist’s opinion as to the impact of removal on Mr. Kanthasamy’s mental health. Immigration officers must be allowed to evaluate an expert’s assumptions in the context of the other evidence. If a report rests on an assumption that is contradicted by other evidence, decision makers must be entitled to reject or give little weight to that report’s conclusions.\n\nIt bears repeating that reasonableness review requires this Court to give respectful attention to the reasons which, though not stated, could have been offered in support of a decision. This point is emphatically made in Newfoundland and Labrador Nurses, where the Court stressed that “even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them” (para. 12, quoting D. Dyzenhaus, “The Politics of Deference: Judicial Review and Democracy”, in M. Taggart, ed., The Province of Administrative Law (1997), 279, at p. 304). The fact that the Officer did not explicitly set out this aspect of her reasoning does not render her decision unreasonable.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10706,7 +10706,7 @@ "text": "My colleague takes issue with the Officer’s comment that Mr. Kanthasamy provided insufficient evidence that he had received or was receiving treatment in Canada for his psychological condition. She says that once the Officer accepted the diagnosis, “requiring further evidence of the availability of treatment, either in Canada or in Sri Lanka, undermined the diagnosis and had the problematic effect of making it a conditional rather than a significant factor” (para. 47).\n\nWith respect, I disagree. There was no evidence before the Officer that Mr. Kanthasamy ever sought treatment in Canada. The Officer’s comments on this point do not amount to questioning the diagnosis. Instead, they support her conclusion that removal from Canada would not meet the hardship test since no existing course of treatment would be interrupted. I fail to see how losing access to a service which Mr. Kanthasamy never attempted to access can be viewed as a hardship. This is especially so given the Officer’s further finding that he could receive treatment in Sri Lanka.\n\nIn my view, there are two ways in which Mr. Kanthasamy’s mental health could give rise to hardship: either because returning him to Sri Lanka would aggravate his condition, or because it would affect his treatment, by interrupting an existing course of treatment or by precluding access to treatment altogether. The Officer, on the basis of the record before her, found that neither situation existed. In this context, asking for evidence regarding treatment did not improperly change the diagnosis from a “significant” to a “conditional” factor. The significance of the diagnosis always depended on the hardship that removal would cause. (b) Personalized Risk of Discrimination", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10724,7 +10724,7 @@ "text": "Mr. Kanthasamy submits that the Officer’s approach to the issue of discrimination was flawed. After noting the effect of s. 25(1.3), the Officer stated that “the onus remains on the applicant to demonstrate that these country conditions would affect him personally”. Mr. Kanthasamy asserts that it was a legal error for the Officer to require evidence that he would be personally targeted by discriminatory action. Rather, he submits that she should have considered more generally whether his profile as a young Tamil male from northern Sri Lanka would subject him to a risk of discriminatory mistreatment.\n\nWhile the Officer’s reasons could perhaps have been more clearly articulated, I do not share the view that her approach to the issue of discrimination was unreasonable, nor that it rendered her decision unreasonable. With respect to the effect of s. 25(1.3), the Officer’s approach is consistent with that set out by Stratas J.A., which I have endorsed. The Officer’s statement that she had “not considered the applicant’s risk” in the context of the refugee and PRRA factors must not be overly parsed or dissected. She engaged with the evidence relating to the treatment of Tamil males in northern Sri Lanka and analyzed it through the lens of the criteria for granting H&C relief. This approach was reasonable and did not lead her to disregard any relevant evidence.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10742,7 +10742,7 @@ "text": "On the issue of personalized risk of discrimination, I agree with my colleague that an applicant need not produce direct evidence showing that discrimination against the applicant himself or herself had occurred or would necessarily occur. Whether in the context of an H&C application, the PRRA process or a refugee claim, certainties are rare. The applicant need only show that the denial of relief would pose a certain risk of harm.\n\nHowever, that risk must necessarily be a “personalized risk”, in the sense that the applicant must fall within the category of people who, on the evidence submitted, would face that risk. For example, in order to establish the harm of removal to a country where discrimination against a certain ethnic minority was alleged, the applicant would need to establish not only that this discrimination was ongoing and sufficiently severe, but also that he or she was a member (or would be perceived to be a member) of the group facing discrimination.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10760,7 +10760,7 @@ "text": "The Officer accepted that the conditions in Sri Lanka posed some risk of discrimination to certain subsets of the Tamil population, but concluded that government harassment and surveillance was focused on those suspected of being LTTE supporters. The Officer impliedly concluded that Mr. Kanthasamy was not suspected of being an LTTE supporter. She also noted that the government had attempted to improve the situation for Tamils. As a result, she found there was insufficient evidence that he would be personally targeted or personally discriminated against. This conclusion was open to her on the record. Though, as my colleague notes, the Officer was permitted to draw inferences from the experiences of other Tamils in order to find a personalized risk of discrimination, the record did not require that she draw that inference here.\n\nI note that on this point, the Officer’s conclusion largely mirrors the finding made on Mr. Kanthasamy’s refugee claim, which he enclosed with his H&C submissions. In that decision, while the Immigration and Refugee Board accepted Mr. Kanthasamy’s description of the two incidents of arrest and detention, it noted that “[t]here were no conditions placed on the claimant before he was released by the army or the police after they had questioned him”, and concluded that “[neither] the police [nor] the army would have released the claimant in the manner described” had they suspected Mr. Kanthasamy of LTTE support or sympathy. The refugee claim was rejected because “on a balance of probabilities . . . [Mr. Kanthasamy’s] profile is not one that would particularly attract any undue attention or reprisal . . . if he returns to his family in Sri Lanka”.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10778,7 +10778,7 @@ "text": "In reaching a similar conclusion in evaluating his H&C application, the Officer arrived at a reasonable result that was supported by the record. Reviewing judges ought not to parse a decision maker’s word choices in “a line-by-line treasure hunt for error” (Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458, at para. 54). The Officer’s reasons must be viewed in the context of the record as a whole, including Mr. Kanthasamy’s submissions. Before the Officer, Mr. Kanthasamy submitted that he “has been personally affected by discrimination . . . and will continue to be so affected” (emphasis added). When viewed in context, the Officer’s conclusion that Mr. Kanthasamy had “failed to provide sufficient evidence to support his statements that he will be personally discriminated against” simply reiterated the wording of his submissions. The Officer’s word choice is not determinative. It is her reasoning that counts. I find nothing in her analysis on the issue of discrimination that warrants this Court’s intervention. (c) Mr. Kanthasamy’s Best Interests as a Child\n\nMr. Kanthasamy submits that the Officer’s analysis of his best interests as a child was superficial and that she failed to give adequate weight to his status as a child.\n\nAgain, I accept that the Officer’s reasons could have been more expansive on this point. However, in my view, both her analysis and conclusion on Mr. Kanthasamy’s best interests as a child were reasonable.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10796,7 +10796,7 @@ "text": "In the context of Mr. Kanthasamy’s application, it was highly relevant that he was one day away from turning 18 when he initially applied for H&C relief. Mr. Kanthasamy was not a young child, born in Canada, facing the prospect of his parents’ deportation and being left here without support. He was a teenager on the verge of adulthood. Removal would reunite him with his parents and siblings in Sri Lanka.\n\nThe Officer considered factors unique to Mr. Kanthasamy’s status as a child, including friendships forged during his teenage years in Canada and his efforts at completing high school. She found that removal to Sri Lanka would not necessarily bring an end to these friendships. She was also unpersuaded that he “would be unable to attend school . . . upon his return to Sri Lanka”. In the totality of his circumstances, she concluded that it was in Mr. Kanthasamy’s best interests as a child to return to the support and care of his immediate family in Sri Lanka.\n\nOn the record before her, it was open to the Officer to conclude that removal to Sri Lanka would not impair Mr. Kanthasamy’s best interests, because he would be returning to his immediate family rather than being separated from them. The Officer was obliged to be “alert, alive and sensitive” to the best interests of the child factor (Baker, at para. 75). In my view, her reasons demonstrate that she was, and I see no basis to disturb her findings on this issue. V. Conclusion", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10814,7 +10814,7 @@ "text": "As I have explained, the test for granting relief under s. 25(1) is not the “unusual and undeserved or disproportionate hardship” test set out in the Guidelines. Nonetheless, the Guidelines remain relevant. They can continue to serve their original purpose — describing the majority of situations appropriate for relief — and can be applied in a way that does not fetter the discretion of immigration officers.\n\nThe Officer here used the hardship framework to guide her analysis. Had she applied the test that I have outlined — whether, having regard to all of the circumstances, decent, fair-minded Canadians aware of the exceptional nature of H&C relief would find it simply unacceptable to deny the relief sought — she would inevitably have reached the same conclusion.\n\nThe Officer’s decision to deny an exemption to Mr. Kanthasamy was reasonable. Although she separately analyzed each factor raised in support of his application, she did not improperly discount the cumulative weight of each factor. Rather, after analyzing each piece of evidence in detail, she reached a conclusion which was grounded in Mr. Kanthasamy’s circumstances as a whole. Although she applied the hardship standard from the Guidelines, she did not do so in a way that fettered her discretion. Accordingly, I would dismiss Mr. Kanthasamy’s appeal, and affirm the Officer’s decision to deny his H&C application. Appeal allowed with costs, Moldaver and Wagner JJ. dissenting.", "current_to": "2015-12-10", "last_amended": "", - "history": "Also reported: [2015] 3 SCR 909", + "history": "[2015] 3 SCR 909", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/15665/index.do" }, { @@ -10832,7 +10832,7 @@ "text": "The appellant, Muhsen Ahmed Ramadan Agraira, a citizen of Libya, has been residing in Canada continuously since 1997, despite having been found to be inadmissible on security grounds in 2002. The finding of inadmissibility was based on the appellant’s membership in the Libyan National Salvation Front (“LNSF”) — a terrorist organization according to Citizenship and Immigration Canada (“CIC”). The appellant applied in 2002 under s. 34(2) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), for ministerial relief from the determination of inadmissibility, but his application was denied in 2009. The Minister of Public Safety and Emergency Preparedness (“Minister”) concluded that it was not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. The appellant’s application for permanent residence was accordingly denied, and he is now at risk of deportation.\n\nMr. Agraira appeals to this Court from a decision in which the Federal Court of Appeal dismissed an application for judicial review of the Minister’s decision denying relief from the determination of inadmissibility. He contends that the Minister took an overly narrow view of the term “national interest” in s. 34(2) of the IRPA by equating it with national security and public safety. He adds that the Minister’s decision failed to meet his legitimate expectations that certain procedures would be followed and certain factors would be taken into account in determining his application for relief.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10850,7 +10850,7 @@ "text": "The question raised by this appeal is whether the Minister’s decision to deny relief can be successfully challenged. Two central issues are raised. First, what is the appropriate standard of review to apply to the Minister’s decision? Second, in light of this standard, should the Minister’s decision be set aside? This appeal also raises two other issues incidental to these central issues, namely the interpretation of the term “national interest” in s. 34(2) of the IRPA and the impact of any legitimate expectations created by Chapter 10 of CIC’s Inland Processing Operational Manual: “Refusal of National Security Cases/Processing of National Interest Requests” (the “Guidelines”).\n\nI agree with the Federal Court of Appeal, but for reasons differing in part, that the Minister’s decision was reasonable and that the application for judicial review should be dismissed. II. Background\n\nThe appellant left Libya in 1996. He first sought refugee status in Germany on the basis of his connection with the LNSF, but his application was denied. He entered Canada in 1997, at Toronto, using a fake Italian passport. He applied for Convention Refugee status in this country on the basis of his affiliation with the LNSF. On his personal information form, he described his activities with that organization as follows: as a member of an 11-person cell, he had delivered envelopes to members of other cells, raised funds, and watched the movements of supporters of the regime then in power. As part of his training, he was taught how to engage people in political discourse and how to raise funds.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10868,7 +10868,7 @@ "text": "The appellant was heard by the Convention Refugee Determination Division of the Immigration and Refugee Board. At the hearing, he provided a letter from the LNSF confirming his membership in that organization. On October 24, 1998, he was denied Convention Refugee status on the basis that he lacked credibility.\n\nWhile his application for refugee status was pending, the appellant married a Canadian woman in a religious ceremony in December 1997. He later married her in a civil ceremony in March 1999. His wife sponsored his application for permanent residence in August 1999.\n\nIn May 2002, the appellant was advised by CIC that his application for permanent residence might be refused, because there were grounds to believe that he was or had been a member of an organization that was or had been engaged in terrorism, contrary to s. 19(1)(f)(iii)(B) of the Immigration Act, R.S.C. 1985, c. I-2 (“IA”), which was then in force.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10886,7 +10886,7 @@ "text": "Later in May 2002, the appellant was interviewed by an immigration officer. In the course of that interview, he confirmed that he had been a member of the LNSF, but claimed that he had previously exaggerated the extent of his involvement in order to bolster his refugee claim. Although he now claimed that he did not know very much about the LNSF, he was able to name its founder and its current leader. Also, after stating that he had attended LNSF meetings in Libya, he said that he had only discussed the group with friends. Finally, he stated that he had had no contact with the LNSF after leaving Libya, but then acknowledged having received newsletters from chapters in the United States since that time. These contradictions led the immigration officer to conclude that the appellant was or had been a member of an organization that engaged in terrorism. He was found to be inadmissible on that basis.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10904,7 +10904,7 @@ "text": "On May 22, 2002, CIC sent the appellant a letter advising him of the possibility of requesting ministerial relief. In July of that year, the appellant applied for that relief. The immigration officer noted, while preparing her report on the interview, that, once again, there were statements in the appellant’s application for relief that contradicted earlier statements he had made. For example, the appellant indicated in this application that he had attended meetings of the LNSF at which he had been trained to approach potential members and raise funds. However, in his interview with the immigration officer, the appellant said that he was unaware how the LNSF funded itself or how it recruited members. The officer concluded that the appellant had been and continued to be a member of the LNSF, but that his involvement had been limited to distributing leaflets and enlisting support for the organization. She therefore recommended that he be granted relief.\n\nAt the same time (July 2002), the officer prepared a Report on Inadmissibility regarding the appellant under s. 44(1) of the IRPA . Her report indicated that he was inadmissible to Canada pursuant to s. 34(1) (f) of the IRPA because he was a member of a terrorist organization.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10922,7 +10922,7 @@ "text": "Next, in August 2005, a briefing note for the Minister was prepared by the Canada Border Services Agency (“CBSA”). After having been reviewed by counsel for the appellant, who made no further comment, the note was submitted to the Minister on March 9, 2006. It contained a recommendation that the appellant be granted relief, as there was “not enough evidence to conclude that Mr. Ramadan Agraira’s continued presence in Canada would be detrimental to the national interest” (A.R., vol. I, at p. 9). This recommendation was based on the following considerations: Mr. Ramadan Agraira admitted to joining the LNSF but was only a member for approximately two years. There is some information to suggest that he became a member at a time when the organization was not in its most active phase and well after it was involved in an operation to overthrow the Libyan regime. He initially stated that he had participated in a number of activities on behalf of the organization but later indicated that he had exaggerated the extent of his involvement so that he could make a stronger claim to refugee status in Canada. This is supported to some extent by the fact that his attempts to obtain refugee status in Germany and Canada were rejected on the basis of credibility. Mr. Ramadan Agraira denied having been involved in any acts of violence or terrorism and there is no evidence to the contrary. He appears to have been a regular member who did not occupy a position of trust or authority within the LNSF. He does not appear to have been totally committed to the LNSF specifically as he indicated to the immigration officer at CIC Oshawa that he would support anyone who tried to remove the current regime in Libya through non-violent means. [A.R., vol. I, at p. 9]", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10940,7 +10940,7 @@ "text": "On January 27, 2009, the Minister rejected the recommendation in the briefing note. The response he gave was as follows: After having reviewed and considered the material and evidence submitted in its entirety as well as specifically considering these issues: • The applicant offered contradictory and inconsistent accounts of his involvement with the Libyan National Salvation Front (LNSF). • There is clear evidence that the LNSF is a group that has engaged in terrorism and has used terrorist violence in attempts to overthrow a government. • There is evidence that LNSF has been aligned at various times with Libyan Islamic opposition groups that have links to Al-Qaeda. • It is difficult to believe that the applicant, who in interviews with officials indicated at one point that he belonged to a “cell” of the LNSF which operated to recruit and raise funds for LNSF, was unaware of the LNSF’s previous activity. It is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations. Ministerial relief is denied. [A.R., vol. I, at p. 11]\n\nOn March 24, 2009, the appellant received notice that his application for permanent residence was denied. He then applied to the Federal Court for judicial review of the Minister’s decision regarding relief. III. Judicial History A. Federal Court, 2009 FC 1302, 357 F.T.R. 246", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10958,7 +10958,7 @@ "text": "Mosley J. began his analysis by ruling on the standard of review. He held that the appropriate standard was reasonableness, citing the discretionary nature of the decision, the fact that it was not delegable, and the Minister’s expertise in matters of national security and the national interest. He added that the political nature of the decision and the Minister’s special knowledge involving sensitivity to the imperatives of public policy and the nuances of the legislative scheme also weighed in favour of deference.\n\nIn applying the reasonableness standard, Mosley J. considered the fact that the Minister had focused on evidence that the LNSF had engaged in terrorism and been aligned with Libyan Islamic groups that had links to Al-Qaeda. He found, on the contrary, that the evidence of the LNSF’s engagement in terrorism was minimal at best. In particular, the LNSF did not appear on the lists of terrorist organizations of the United Nations, Canada and the United States. Although several Libyan opposition groups had direct links with Al-Qaeda, there was no evidence in the record that LNSF was one of them. Because it had been previously determined that the LNSF was a terrorist group for the purposes of s. 34(1) (f) of the IRPA , the court could not review that finding. However, Mosley J. found it difficult to understand why the Minister had given so much weight to the LNSF’s engagement in terrorism and its alignment with Libyan Islamic groups that had links to Al-Qaeda.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10976,7 +10976,7 @@ "text": "Mosley J. then referred to the Federal Court’s decision in Abdella v. Canada (Minister of Public Safety and Emergency Preparedness), 2009 FC 1199, 355 F.T.R. 86, in which Gibson J. had relied on the Guidelines to set aside the Minister’s decision to deny relief under s. 34(2). Appendix D to the Guidelines contains five questions to be addressed in the context of an application for such relief: 1. Will the applicant’s presence in Canada be offensive to the Canadian public? 2. Have all ties with the regime/organization been completely severed? 3. Is there any indication that the applicant might be benefiting from assets obtained while a member of the organization? 4. Is there any indication that the applicant might be benefiting from previous membership in the regime/organization? 5. Has the person adopted the democratic values of Canadian society?", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -10994,7 +10994,7 @@ "text": "Mosley J. noted that in the instant case, the Minister had not addressed these questions in the reasons he gave for his decision, nor had he balanced the factors the Federal Court had in past cases identified as being relevant to the determination of what is in the national interest, namely: whether the appellant posed a threat to Canada’s security; whether the appellant posed a danger to the public; the period of time the appellant had been in Canada; whether the determination is consistent with Canada’s humanitarian reputation of allowing permanent residents to settle in Canada; the impact on both the appellant and all other members of society of the denial of permanent residence; and adherence to all Canada’s international obligations. He criticized the Minister for not considering in his decision the facts that the appellant had been residing in Canada since 1997 and had been a productive member of society, that he had no criminal record, and that he owned a business earning over $100,000 a year. In Mosley J.’s view, the exercise of the Minister’s discretion seemed to have been rendered meaningless by the Minister’s “simplistic view that the presence in Canada of someone who at some time in the past may have belonged to a terrorist organization abroad can never be in the national interest” (para. 27).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11012,7 +11012,7 @@ "text": "Mosley J. granted the application for judicial review and certified the following questions for consideration by the Federal Court of Appeal: When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Specifically, must the Minister consider the five factors listed in the Appendix D of IP 10? [para. 32] B. Federal Court of Appeal, 2011 FCA 103, 415 N.R. 121\n\nIn the Federal Court of Appeal, Pelletier J.A. (Blais C.J. and Noël J.A. concurring) considered the issues separately in ruling on the standard of review. He held that establishing the meaning of the term “national interest” for the purposes of s. 34(2) is a question of law in respect of which the Minister has no particular expertise and for which the appropriate standard is therefore correctness. The appropriate standard for reviewing the exercise of the Minister’s discretion, on the other hand, is reasonableness.\n\nPelletier J.A. confirmed that, in an application for ministerial relief, the onus is on the applicant to satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest. Because this onus was reversed in the briefing note, he held that it was open to the Minister to disregard the recommendation made in the note.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11030,7 +11030,7 @@ "text": "Pelletier J.A. next turned to the interpretation of s. 34(2) of the IRPA . He tracked the legislative evolution of s. 34(2) to find what, in his view, was the correct interpretation of this subsection. He noted that Parliament had transferred the responsibility for exercising the discretion from the Minister of Citizenship and Immigration (“MCI”) to the Minister. As a result of this change, s. 34(2) has to be read in light of the objects of the Department of Public Safety and Emergency Preparedness Act , S.C. 2005, c. 10 (“DPSEPA ”) (the Minister’s enabling statute), the Canada Border Services Agency Act , S.C. 2005, c. 38 (“CBSAA ”) (the statute governing the CBSA, the organization that assists the Minister in his or her duties), and the IRPA . These statutes work together as part of a statutory scheme to which the presumption of coherence must be applied.\n\nIn May 2002, when the appellant’s admissibility interview took place, the IA was in force. Under the IA, the MCI was responsible both for the determination of inadmissibility and for the decision on granting relief. He or she was also responsible for deciding whether to grant exemptions from the IA on humanitarian and compassionate (“H&C”) grounds.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11048,7 +11048,7 @@ "text": "On June 28, 2002, the IRPA replaced the IA. Under the transitional provisions of the IRPA , the appellant’s application for relief would now be governed by the IRPA , and more specifically by s. 34 of that Act. At that time, the MCI was still responsible for deciding whether to grant relief under s. 34(2). After the CBSAA was passed in 2005, the responsible minister became “[t]he Minister as defined in section 2 ” of the CBSAA (IRPA , s. 4(2) , repl. by S.C. 2005, c. 38, s. 118 ). In 2008, the Minister was specifically identified as the responsible minister. The MCI retained the ability to grant exemptions from the IRPA on H&C grounds.\n\nThis review led Pelletier J.A. to conclude that under the statutory scheme, the Minister was responsible for deciding whether to grant relief, whereas the MCI continued to be responsible for deciding whether to grant exemptions on the basis of H&C considerations. Hence, Parliament intended that ministerial relief would be granted or denied on the basis of considerations other than those that could support an application for H&C relief. The proper procedure for making an application based on H&C considerations is that under s. 25 of the IRPA , not that of an application for ministerial relief under s. 34(2).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11066,7 +11066,7 @@ "text": "Pelletier J.A. then equated the “national interest”, for the purposes of s. 34(2), with national security and public safety. He found support for this proposition in the DPSEPA and the CBSAA. The DPSEPA emphasizes the Minister’s responsibility for public safety and emergency preparedness. Under the CBSAA, the Minister is also responsible for the CBSA, whose purpose is, inter alia, to provide “integrated border services that support national security and public safety priorities” (CBSAA , s. 5 ). Pelletier J.A. found that this statutory scheme supports the view that the exercise of the Minister’s discretion under s. 34(2) must be primarily, if not exclusively, guided by his or her national security and public safety role.\n\nPelletier J.A. next considered the effect of the Guidelines, in which the following definition of the term “national interest” appears: “The consideration of national interest involves the assessment and balancing of all factors pertaining to the applicant’s admission against the stated objectives of the Act as well as Canada’s domestic and international interests and obligations” (s. 6).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11084,7 +11084,7 @@ "text": "Pelletier J.A. noted that the Guidelines cannot alter the law as enacted by Parliament and found that they are of limited application now that the Minister, as opposed to the MCI, has become responsible for decisions on granting ministerial relief under s. 34(2). This conclusion was based on s. 4(2) (c) of the IRPA , which provides that the Minister is responsible for the establishment of policies regarding “inadmissibility on grounds of security”. As a consequence, the five factors set out in the Guidelines need not be considered in disposing of relief applications. For Pelletier J.A., this Court’s dictum in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 72, to the effect that guidelines are “a useful indicator of what constitutes a reasonable interpretation of the power conferred by the section” does not apply in the case of the Guidelines. This is because the Guidelines serve to identify foreign nationals whose presence in Canada would be detrimental to the national interest, and thus to eliminate unsuitable candidates for relief. They do not serve, as was the case in Baker, to identify suitable candidates for relief.\n\nPelletier J.A. then went on to hold that the fact that a finding of inadmissibility under s. 34(1) might negate the possibility of relief under s. 34(2) does not render that relief illusory. Rather, on the basis of Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3, the relief under s. 34(2) was meant to apply only in exceptional cases in which the applicant’s association with a terrorist group was innocent or coerced.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11102,7 +11102,7 @@ "text": "Finally, Pelletier J.A. concluded that the Minister’s decision was reasonable. The Minister had addressed the appellant’s submission that his involvement with the LNSF was either non-existent, innocent or trivial and had found the appellant’s account of his involvement to be “contradictory and inconsistent” (para. 69). Ultimately, because the appellant lacked credibility as a result of these contradictions and inconsistencies, the Minister had had no faith in any of his representations. Accordingly, the Minister had not acted unreasonably in reaching the conclusion he had. The application for judicial review was dismissed, and the certified questions were answered as follows: 1- When determining a ss. 34(2) application, must the Minister of Public Safety consider any specific factors in assessing whether a foreign national’s presence in Canada would be contrary to the national interest? Answer: National security and public safety, as set out in para. 50 of these reasons. 2- Specifically, must the Minister consider the five factors listed in the Appendix D of IP10? Answer: No. [para. 74] IV. Analysis A. Issues\n\nThe issues to be resolved in this appeal are as follows: (1) Is the standard of review for the Minister’s decision reasonableness or correctness? (2) Is the Minister’s decision valid? (3) Was the decision unfair, and did it fail to meet the appellant’s legitimate expectations?\n\nAs I mentioned above, a corollary issue related to the first and second issues is the meaning of the term “national interest” in s. 34(2) of the IRPA . B. Positions of the Parties (1) Position of the Appellant", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11120,7 +11120,7 @@ "text": "The appellant submits that the standard of review applicable to all the issues before this Court is correctness, because they all constitute questions of pure law and natural justice. The Minister’s decision was incorrect in that it was based on an erroneous view of the meaning of the term “national interest” in s. 34(2) of the IRPA and it failed to meet the appellant’s legitimate expectations as to what factors would be considered in assessing his application for relief.\n\nThe appellant contends that the Federal Court of Appeal relied too heavily on the legislative transfer of ministerial responsibility in interpreting the term “national interest” for the purposes of s. 34(2). This shift in responsibility between governmental departments does not indicate a concomitant legislative intent to change the interpretation of the IRPA . He also argues that the term “national interest” should be given a broader meaning than the one ascribed to it by the Federal Court of Appeal. Although public security and national defence should both be taken into account as relevant factors in the Minister’s exercise of discretion, they should not be the only factors considered in applying the “national interest” test. In taking an unduly narrow view of the term “national interest” by equating it with one aspect of that interest (national security and public safety), the Federal Court of Appeal set a precedent which unlawfully fetters the Minister’s discretion by requiring that he or she consider only that one aspect when dealing with future applications for relief.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11138,7 +11138,7 @@ "text": "Finally, the appellant submits that the Minister’s decision was unfair in that it failed to meet legitimate expectations created by the Guidelines. The Guidelines were clear and unambiguous representations made by the government to the public inasmuch as they were publicly available, had been routinely used by the Minister, and had been issued to ensure consistency. They created an expectation that certain factors extrinsic to national security would be considered in assessing s. 34(2) applications by instructing applicants to address, inter alia, the following factors in their submissions: the reason why the applicant is seeking admission to Canada, any special circumstances related to the application, and any current activities in which the applicant is involved. The appellant further contends that a letter he received from CIC in May 2002 created a legitimate expectation that H&C factors would be considered in assessing his application for relief. It stated that a decision under s. 34(2) would require the Minister to assess both the detriment the appellant posed to the national interest of Canada and any H&C circumstances pertinent to his situation. According to the appellant, this legitimate expectation was not met, because the Minister did not, in assessing his application, consider the factors he had been told were relevant. (2) Position of the Respondent", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11156,7 +11156,7 @@ "text": "The respondent submits that the standard of review is reasonableness and that the Minister’s decision was reasonable. The Minister’s interpretation of the term “national interest” is entitled to deference, as the IRPA does not specify any factors that must be considered in this regard, and the term is found in the Minister’s enabling statute, with which the Minister has particular familiarity. A decision on an application for relief under s. 34(2) falls at the political end of the spectrum, is discretionary, and concerns matters in which the Minister has expertise.\n\nAccording to the respondent, the legislative history of the IRPA and the related legislation supports the view that the national security and public safety aspects of the national interest are to be the predominant considerations in determining whether to grant s. 34(2) relief, but these remain subject to any other considerations the Minister deems appropriate, except for H&C factors. The purpose of s. 34 is to ensure the safety and security of Canadians, while s. 34(2) provides for relief for innocent or coerced members of terrorist organizations who would otherwise be inadmissible. Section 34(2) must be seen as complementary to s. 34(1). Since s. 34(1) deals with inadmissibility on security grounds, the dominant considerations under s. 34(2) must be national security and public safety. H&C factors are not relevant to a determination of the “national interest” under s. 34(2), as they are properly dealt with in H&C applications under s. 25 of the IRPA . This interpretation of s. 34(2) is bolstered by the legislative transfer of responsibility for decisions on applications for relief to the Minister, whose mandate is the protection of public safety.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11174,7 +11174,7 @@ "text": "Ultimately, the respondent argues, the Minister’s decision in this case was reasonable. It was transparent, intelligible and justifiable. It also fell within the range of possible acceptable outcomes that meet the standard of reasonableness in accordance with Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The appellant had offered self-serving and contradictory explanations of his role in, and activities for, the LNSF, and therefore lacked credibility. It was also clear that he had had sustained contact with a group that had committed terrorist acts.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11192,7 +11192,7 @@ "text": "The respondent also contends that there was no failure to meet legitimate expectations in this case. The Guidelines emphasize the exceptional and discretionary nature of ministerial relief, and their stated objectives emphasize national security and public safety. They created expectations with respect to procedures, but not to substantive rights. They could not alter the law as laid down by Parliament and so could not mandate the consideration of factors not relevant to the national interest analysis. In any event, immigration officials did follow the procedures they were expected to follow in this case. A letter sent from CIC to the appellant in May 2002 stated that the ministerial relief process would require an assessment of the detriment he posed to the national interest, and of any relevant H&C circumstances. The appellant had a sufficient opportunity to present evidence and submissions in support of his case. He was then provided with a further opportunity to respond to information officials had obtained and provided to the Minister. The Minister reviewed the application and the briefing note, and exercised his statutory discretion as he saw fit. He provided sufficient reasons for his decision, in which he indicated that he had “reviewed and considered the material and evidence submitted in its entirety”. C. Forms of Ministerial Relief (1) Sections 25 and 25.1 of the IRPA", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11210,7 +11210,7 @@ "text": "Before I turn to the Minister’s decision, it will be helpful to explain the two forms of ministerial relief currently available to foreign nationals in Canada who are deemed to be inadmissible. The first form, H&C relief, is provided for in ss. 25 and 25.1 of the IRPA : 25. (1) Subject to subsection (1.2), the [MCI] must, on request of a foreign national in Canada who applies for permanent resident status and who is inadmissible or does not meet the requirements of this Act, and may, on request of a foreign national outside Canada who applies for a permanent resident visa, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected. . . . 25.1 (1) The [MCI] may, on the [MCI’s] own initiative, examine the circumstances concerning a foreign national who is inadmissible or who does not meet the requirements of this Act and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of this Act if the [MCI] is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11228,7 +11228,7 @@ "text": "These provisions contemplate the granting of ministerial relief to foreign nationals seeking permanent resident status who are inadmissible or otherwise do not meet the requirements of the IRPA . Under them, the MCI may, either upon request or of his own accord, “grant the foreign national permanent resident status or an exemption from any applicable criteria or obligations of” the IRPA . However, relief of this nature will only be granted if the MCI “is of the opinion that it is justified by humanitarian and compassionate considerations relating to the foreign national”. H&C considerations include such matters as children’s rights, needs, and best interests; maintaining connections between family members; and averting the hardship a person would suffer on being sent to a place where he or she has no connections (see Baker, at paras. 67 and 72). (2) Section 34(2) of the IRPA", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11246,7 +11246,7 @@ "text": "Section 34(2) of the IRPA contemplates a different form of ministerial relief based upon the “national interest”. Section 34 reads as follows: 34. (1) [Security] A permanent resident or a foreign national is inadmissible on security grounds for (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; (b) engaging in or instigating the subversion by force of any government; (c) engaging in terrorism; (d) being a danger to the security of Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or (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). (2) [Exception] 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.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11264,7 +11264,7 @@ "text": "As I mentioned above, the appellant was found to be inadmissible on security grounds for having been, in the words of s. 34(1)(f), “a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph . . . (c)”, namely acts of terrorism. He sought relief under s. 34(2), which provides that the Minister may make an exception where a person has been found to be inadmissible, on being satisfied that the person’s continued “presence in Canada would not be detrimental to the national interest”. As the wording of the section (“who satisfies the Minister”) implies, the onus is on the person who applies for relief to prove that his or her continued presence in Canada would not be detrimental to the national interest.\n\nIn short, s. 34(2) of the IRPA establishes a pathway for relief which is conceptually and procedurally distinct from the relief available under s. 25 or s. 25.1. It should be borne in mind that an applicant who fails to satisfy the Minister that his or her continued presence in Canada would not be detrimental to the national interest under s. 34(2) may still bring an application for H&C relief. Whether such an application would be successful is another matter. D. Standard of Review (1) Relationship Between the Administrative Law Standards of Review and the Appellate Standards of Review", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11282,7 +11282,7 @@ "text": "The first issue in this appeal concerns the standard of review applicable to the Minister’s decision. But, before I discuss the appropriate standard of review, it will be helpful to consider once more the interplay between (1) the appellate standards of correctness and palpable and overriding error and (2) the administrative law standards of correctness and reasonableness. These standards should not be confused with one another in an appeal to a court of appeal from a judgment of a superior court on an application for judicial review of an administrative decision. The proper approach to this issue was set out by the Federal Court of Appeal in Telfer v. Canada Revenue Agency, 2009 FCA 23, 386 N.R. 212, at para. 18: Despite some earlier confusion, there is now ample authority for the proposition that, on an appeal from a decision disposing of an application for judicial review, the question for the appellate court to decide is simply whether the court below identified the appropriate standard of review and applied it correctly. The appellate court is not restricted to asking whether the first-level court committed a palpable and overriding error in its application of the appropriate standard.\n\nIn Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247, Deschamps J. aptly described this process as “‘step[ping] into the shoes’ of the lower court” such that the “appellate court’s focus is, in effect, on the administrative decision” (emphasis deleted).\n\nThe issue for our consideration can thus be summarized as follows: Did the application judge choose the correct standard of review and apply it properly? (2) What Is the Standard of Review?", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11300,7 +11300,7 @@ "text": "As this Court held in Dunsmuir, a court deciding an application for judicial review must engage in a two-step process to identify the proper standard of review. First, it must consider whether the level of deference to be accorded with regard to the type of question raised on the application has been established satisfactorily in the jurisprudence. The second inquiry becomes relevant if the first is unfruitful or if the relevant precedents appear to be inconsistent with recent developments in the common law principles of judicial review. At this second stage, the court performs a full analysis in order to determine what the applicable standard is. Determination of the Standard in Light of the Jurisprudence", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11318,7 +11318,7 @@ "text": "In my view, the standard of review applicable in the case at bar has been satisfactorily determined in past decisions to be reasonableness. A host of cases from the Federal Court indicate that reasonableness is the standard for reviewing decisions on applications for ministerial relief under s. 34(2) of the IRPA : Esmaeili-Tarki v. Canada (Minister of Citizenship and Immigration), 2005 FC 509 (CanLII); Miller v. Canada (Solicitor General), 2006 FC 912, [2007] 3 F.C.R. 438; Naeem v. Canada (Minister of Citizenship and Immigration), 2007 FC 123, [2007] 4 F.C.R. 658; Al Yamani v. Canada (Minister of Public Safety and Emergency Preparedness), 2007 FC 381, 311 F.T.R. 193; Soe v. Canada (Public Safety and Emergency Preparedness), 2007 FC 461 (CanLII); Kanaan v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 241, 71 Imm. L.R. (3d) 63; Chogolzadeh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 405, 327 F.T.R. 39; Tameh v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 884, 332 F.T.R. 158; Kablawi v. Canada (Minister of Public Safety and Emergency Preparedness), 2008 FC 1011, 333 F.T.R. 300; Ramadan v. Canada (Minister of Citizenship and Immigration), 2008 FC 1155, 335 F.T.R. 227; Afridi v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1192, 75 Imm. L.R. (3d) 291; Ismeal v. Canada (Minister of Public Safety & Emergency Preparedness), 2008 FC 1366, 77 Imm. L.R. (3d) 310; Abdella. This jurisprudence is well established, and the appellant has not shown why it should not be relied on in this appeal.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11336,7 +11336,7 @@ "text": "The applicability of the reasonableness standard can be confirmed by following the approach discussed in Dunsmuir. As this Court noted in that case, at para. 53, “[w]here the question is one of fact, discretion or policy, deference will usually apply automatically”. Since a decision by the Minister under s. 34(2) is discretionary, the deferential standard of reasonableness applies. Also, because such a decision involves the interpretation of the term “national interest” in s. 34(2), it may be said that it involves a decision maker “interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity” (Dunsmuir, at para. 54). This factor, too, confirms that the applicable standard is reasonableness. (3) Meaning of Reasonableness\n\nIn Dunsmuir, the Court defined reasonableness as follows: . . . a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11354,7 +11354,7 @@ "text": "In Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708, Abella J., for a unanimous Court, returned to the meaning of reasonableness and deference. She stated: This, I think, is the context for understanding what the Court meant in Dunsmuir when it called for “justification, transparency and intelligibility”. To me, it represents a respectful appreciation that a wide range of specialized decision-makers routinely render decisions in their respective spheres of expertise, using concepts and language often unique to their areas and rendering decisions that are often counter-intuitive to a generalist. . . . Read as a whole, I do not see Dunsmuir as standing for the proposition that the “adequacy” of reasons is a stand-alone basis for quashing a decision, or as advocating that a reviewing court undertake two discrete analyses — one for the reasons and a separate one for the result (Donald J. M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §§12:5330 and 12:5510). It is a more organic exercise — the reasons must be read together with the outcome and serve the purpose of showing whether the result falls within a range of possible outcomes. This, it seems to me, is what the Court was saying in Dunsmuir when it told reviewing courts to look at “the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes” (para. 47). In assessing whether the decision is reasonable in light of the outcome and the reasons, courts must show “respect for the decision-making process of adjudicative bodies with regard to both the facts and the law” (Dunsmuir, at para. 48).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11372,7 +11372,7 @@ "text": "This means that courts should not substitute their own reasons, but they may, if they find it necessary, look to the record for the purpose of assessing the reasonableness of the outcome. . . . if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met. [paras. 13-16]\n\nIn one of its most recent comments on this point, in Construction Labour Relations v. Driver Iron Inc., 2012 SCC 65, [2012] 3 S.C.R. 405, the Court emphasized that the reviewing court must consider the tribunal’s decision as a whole, in the context of the underlying record, to determine whether it was reasonable: . . . administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). [para. 3]\n\nI will now consider whether the Minister’s decision was reasonable. The remainder of my reasons will focus on this issue. E. Meaning of “National Interest” Under Section 34(2) of the IRPA", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11390,7 +11390,7 @@ "text": "The meaning of the term “national interest” in s. 34(2) of the IRPA was central to the Minister’s exercise of discretion in this case. As is plain from the statute, the Minister exercises this discretion by determining whether he or she is satisfied by the applicant that the applicant’s presence in Canada would not be detrimental to the national interest. The meaning of “national interest” in the context of this section is accordingly key, as it defines the standard the Minister must apply to assess the effect of the applicant’s presence in Canada in order to exercise his or her discretion.\n\nThe Minister, in making his decision with respect to the appellant, did not expressly define the term “national interest”. The first attempt at expressly defining it was by Mosley J. in the Federal Court, and he also certified a question concerning this definition for the Federal Court of Appeal’s consideration. We are therefore left in the position, on this issue, of having no express decision of an administrative decision maker to review.\n\nThis Court has already encountered and addressed this situation, albeit in a different context, in Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654. In that case, Rothstein J. held that a decision maker’s decision on the merits may imply a particular interpretation of the statutory provision at issue even if the decision maker has not expressed an opinion on that provision’s meaning.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11408,7 +11408,7 @@ "text": "The reasoning from Alberta Teachers’ Association can be applied to the case at bar. It is evident from the Minister’s holding that “[i]t is not in the national interest to admit individuals who have had sustained contact with known terrorist and/or terrorist-connected organizations” that the Minister made a determination of the meaning of “national interest”. An interpretative decision as to that term is necessarily implied within his ultimate decision on ministerial relief, although this Court is not in a position to determine with finality the actual reasoning of the Minister. In these circumstances, we may “consider the reasons that could be offered for the [Minister’s] decision when conducting a reasonableness review” of that decision (Alberta Teachers’ Association, at para. 54). Accordingly, I now turn to consider what appears to have been the ministerial interpretation of “national interest”, based on the Minister’s “express reasons” and the Guidelines, which inform the scope and context of those reasons. I will then assess whether this implied interpretation, and the Minister’s decision as a whole, were reasonable.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11426,7 +11426,7 @@ "text": "The Minister stated in his reasons that he had “reviewed and considered the material and evidence submitted in its entirety”. This material included the following information set out in the CBSA’s briefing note, which addressed many of the questions presented in the Guidelines: 1. The extent of the appellant’s membership in, and activities on behalf of, the LNSF are in question. 2. At most, the appellant was a “passive member” of the LNSF who carried out “basic functions”. He was never involved in violent acts. 3. The appellant joined the LNSF in 1994 to support democracy, freedom of speech, and human rights in Libya. At that time, the organization was, by and large, no longer engaged in violence. In any event, the appellant claimed to have no knowledge of the LNSF’s involvement in violence and would not have supported the LNSF had it espoused the use of violence to achieve political change. 4. There is evidence to suggest that the appellant severed all ties with the LNSF when he came to Canada in 1997. 5. Throughout, the appellant’s goal has been to support the establishment of a democratic system of government in Libya. 6. The appellant has two children, attended English as a second language classes, and owns his own transport business. (A.R., vol. I, at pp. 5-9)", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11444,7 +11444,7 @@ "text": "The Guidelines did not constitute a fixed and rigid code. Rather, they contained a set of factors, which appeared to be relevant and reasonable, for the evaluation of applications for ministerial relief. The Minister did not have to apply them formulaically, but they guided the exercise of his discretion and assisted in framing a fair administrative process for such applications. As a result, the Guidelines can be of assistance to the Court in understanding the Minister’s implied interpretation of the “national interest”.\n\nMoreover, the Minister placed particular emphasis on matters related to national security and public safety in the reasons he gave for his decision. These included: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF.\n\nTaking all the above into account, had the Minister expressly provided a definition of the term “national interest” in support of his decision on the merits, it would have been one which related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations (see Appendix 1 (the relevant portions of the Guidelines)).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11462,7 +11462,7 @@ "text": "As a result of my comments above on the standard of review, I am of the view that the Minister is entitled to deference as regards this implied interpretation of the term “national interest”. As Rothstein J. stated, “[w]here the reviewing court finds that the tribunal has made an implicit decision on a critical issue, the deference due to the tribunal does not disappear” (Alberta Teachers’ Association, at para. 50).\n\nIn my view, the Minister’s interpretation of the term “national interest”, namely that it is focused on matters related to national security and public safety, but also encompasses the other important considerations outlined in the Guidelines and any analogous considerations, is reasonable. It is reasonable because, to quote the words of Fish J. from Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160, it “accords . . . with the plain words of the provision, its legislative history, its evident purpose, and its statutory context” (para. 46). That is to say, the interpretation is consistent with Driedger’s modern approach to statutory interpretation: 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. (Construction of Statutes (2nd ed. 1983), at p. 87) (1) Plain Words of the Provision", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11480,7 +11480,7 @@ "text": "There is no dispute between the parties that the term “national interest” refers to matters which are of concern to Canada and to Canadians. There is no doubt that public safety and national security are matters which are of concern to Canada and to Canadians. It is equally clear, however, that more than just public safety and national security are of concern to Canada and to Canadians. For example, the plain meaning of the term “national interest” would also include the preservation of the values that underlie the Canadian Charter of Rights and Freedoms and the democratic character of the Canadian federation, and in particular the protection of the equal rights of every person to whom its laws and its Constitution apply. The plain words of the provision therefore favour a broader reading of the term “national interest” than the one suggested by the respondent and by the Federal Court of Appeal, which would limit its meaning to the protection of public safety and national security. The words of the statute are consistent with the Minister’s implied interpretation of this term, which relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations. The legislative history of the provision is also relevant to an understanding of the range of values and interests underlying the concept of the national interest. (2) Legislative History of the Provision\n\nThe legislative history of s. 34(2) is a long one. In these reasons, I will only discuss the salient points of this history, those which serve to demonstrate that the Minister’s implied interpretation of the term “national interest” is consistent with it.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11498,7 +11498,7 @@ "text": "Ministerial relief from a finding of inadmissibility first became available in 1952. Relief was available to persons who were members of or associated with any organization, group or body that was or had been involved in the subversion by force or other means of democratic government, institutions or processes. Those who sought such relief had to satisfy the minister that they had ceased to be members of or associated with the organization, group or body in question and that their admission “would not be detrimental to the security of Canada” (Immigration Act, R.S.C. 1952, c. 325, s. 5(l)). Parliament made it clear at the time that it intended the focus of an application for ministerial relief to be national security.\n\nIn 1977, the provisions of the Immigration Act on inadmissibility were revised to read, in part, as follows: 19. (1) No person shall be granted admission if he is a member of any of the following classes: . . . (e) persons who have engaged in or who there are reasonable grounds to believe will engage in acts of espionage or subversion against democratic government, institutions or processes, as they are understood in Canada, except persons who, having engaged in such acts, have satisfied the Minister that their admission would not be detrimental to the national interest; (Immigration Act, 1976, S.C. 1976-77, c. 52, s. 19(1)(e))\n\nThus, in 1977, Parliament made a clear decision to change the approach to ministerial relief. The test would no longer focus solely on national security, as access to relief would instead be premised on a broader array of domestic and international considerations constituting the “national interest”. Since then, the provisions on ministerial relief in both the IA and the IRPA have at all times referred to the “national interest”.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11516,7 +11516,7 @@ "text": "Parliament was (or at least must be taken to have been) aware of the previous “detrimental to the security of Canada” test when it decided to enact, and later to keep, the “national interest” test for ministerial relief. The fact that, at all material times, the wording of s. 34(2) referred to the applicant’s not being detrimental to the “national interest”, as opposed to not being detrimental to the “security of Canada”, strongly suggests that Parliament did not intend the term “national interest” to relate exclusively to national security and public safety. Had that been the case, Parliament could have returned to the expression “security of Canada” in enacting s. 34(2).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11534,7 +11534,7 @@ "text": "The IRPA replaced the IA in 2002. As it was enacted in a post-9/11 world, the IRPA was clearly in part a response to the threats of the complex and dangerous environment which had been developing internationally. In support of his contention that the interpretation of the term “national interest” should focus on national security and public safety, the respondent quotes the following passage from a Senate Committee report in his factum: The Committee recognizes that Bill C-11 represents a major overhaul of Canada’s immigration and refugee protection legislation, and it will thus likely set the standard for many years to come. The Committee also fully appreciates that the current context in which the Bill is being considered is one of heightened security concerns following the profoundly tragic events of 11 September 2001 in the United States. In this context the Committee realizes that the Bill must embody a balance that will respect the needs and rights of individuals while simultaneously serving the public interest particularly with respect to security concerns and meeting Canada’s international obligations. [Emphasis added.] (Standing Senate Committee on Social Affairs, Science and Technology, “Ninth Report”, 1st Sess., 37th Parl., October 23, 2001 (online))\n\nThis passage certainly highlights the IRPA ’s role in “serving the public interest . . . with respect to security concerns”. However, it does not limit the national interest to security concerns. It also highlights the fact that meeting Canada’s international obligations (including, presumably, obligations stemming from rules of customary and conventional international human rights law) is an important part of the national interest.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11552,7 +11552,7 @@ "text": "In 2005, the DPSEPA formally established both the Department of Public Safety and Emergency Preparedness and the Minister’s post. The respondent submits that the creation of this new department and of the CBSA, as well as the transfer of ministerial responsibility for decisions under s. 34(2), formed part of a new national security policy instituted by Parliament in response to the events of September 11, 2001. In particular, he argues that the legislative transfer of the responsibility for making such decisions from the MCI to the Minister, occurring as it did in the broader context of national security and public safety, supports the Federal Court of Appeal’s interpretation of the term “national interest”.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11570,7 +11570,7 @@ "text": "I am not persuaded that the transfer of ministerial responsibility for s. 34(2) applications serves as a sufficient basis for upholding the Federal Court of Appeal’s interpretation of the term “national interest”. On its own, this transfer should not be read as changing, nor does it change, the substantive law governing relief applications under s. 34(2). Ministerial responsibilities may be reassigned for a wide variety of reasons. If this argument was valid, it would imply that the meaning of a law might change whenever ministerial responsibilities are reassigned. This would be a new and perplexing principle of interpretation. There is a presumption against the implicit alteration of the law according to which, absent an explicit change in the wording of a provision, it is presumed that Parliament did not intend to amend its meaning. Although the ministerial responsibility for deciding relief applications under s. 34(2) was transferred in 2005, Parliament did not amend the wording of this provision. Therefore, the presumption against implicit alteration applies, and there was no intent to amend the meaning of the term “national interest”. As the appellant points out in his factum, this presumption is not rebutted by a mere transfer of ministerial responsibility: It does not make sense that every time Parliament decides to change the responsibilities of particular Ministers for administrative purposes, or without indicating that there is a substantive reason for a change, the words of a statute should be given different meanings. A mere transfer in Ministerial responsibility is not sufficient to establish that the change is meant to have a substantive effect on the rights of persons who are affected by legislation administered by the various ministers.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11588,7 +11588,7 @@ "text": "The Court of Appeal’s interpretation of national interest effectively amends section 34(2). Amending legislation is a legislative function, and falls outside of the judicial function. [para. 76]\n\nIn summary, this review demonstrates that the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with the legislative history of the provision. (3) Purpose of the Provision\n\nThe respondent argues that the IRPA is concerned with public safety and national security. More specifically, he argues that the purpose of s. 34(1)(c) and (f) is to ensure the safety and security of Canadians, while s. 34(2) provides for relief only for innocent or coerced members of terrorist organizations who would otherwise be inadmissible.\n\nThe respondent is correct in saying that the IRPA is concerned with national security and public safety. In fact, the Court recognized this in Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R. 539: The objectives as expressed in the IRPA indicate an intent to prioritize security. . . . Viewed collectively, the objectives of the IRPA and its provisions concerning permanent residents, communicate a strong desire to treat criminals and security threats less leniently than under the former Act. [para. 10]", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11606,7 +11606,7 @@ "text": "That said, the respondent’s argument that s. 34(2) is focused exclusively on national security and public safety, and that it provides for relief only for innocent or coerced members of terrorist organizations, fails to give adequate consideration to the other objectives of the IRPA . Section 3(1) of the IRPA sets out 11 objectives of the Act with respect to immigration. Only two of these are related to public safety and national security: to protect public health and safety and to maintain the security of Canadian society (s. 3(1)(h)), and 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 (s. 3(1)(i)). The other nine objectives relate to other factors that properly inform the interpretation of the term “national interest” (e.g., “to permit Canada to pursue the maximum social, cultural and economic benefits of immigration” (s. 3(1)(a))). The explicit presence of these other objectives in the IRPA strongly suggests that this term is not limited to public safety and national security, but that the Parliament of Canada also intended that it be interpreted in the context of the values of a democratic state. Section 34 is intended to protect Canada, but from the perspective that Canada is a democratic nation committed to protecting the fundamental values of its Charter and of its history as a parliamentary democracy.\n\nAccordingly, the Minister’s broad implied interpretation of the term “national interest” is also consistent with the purpose of the provision. (4) Context of the Provision", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11624,7 +11624,7 @@ "text": "As the Court noted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559, “[t]he preferred approach [to statutory interpretation] recognizes the important role that context must inevitably play when a court construes the written words of a statute” (para. 27). The context of s. 34(2) provides much guidance for the interpretation of the term “national interest”.\n\nFirst, according to the presumption of consistent expression, when different terms are used in a single piece of legislation, they must be understood to have different meanings. If Parliament has chosen to use different terms, it must have done so intentionally in order to indicate different meanings. The term “national interest” is used in s. 34(2), which suggests that what is to be considered by the Minister under that provision is broader than the considerations of whether the individual is “a danger to the security of Canada” (s. 34(1)(d)) or whether he or she “might endanger the lives or safety of persons in Canada” (s. 34(1)(e)), both of which appear in s. 34(1). If Parliament had intended national security and public safety to be the only considerations under s. 34(2), it could have said so using the type of language found in s. 34(1). It did not do so, however.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11642,7 +11642,7 @@ "text": "In a similar vein, the terms “national security”, “danger to the public” and “endanger the safety of any person” each appear several times elsewhere in the IRPA . In light of the presumption of consistent expression, “national interest” cannot be synonymous with any of these terms. Rather, the use of the term “national interest” implies that the Minister is to carry out a broader analysis under s. 34(2). Contrary to what the Federal Court of Appeal held in the case at bar, in determining whether a person’s continued presence in Canada would not be detrimental to the national interest, the Minister must consider more than just national security and whether the applicant is a danger to the public or to the safety of any person.\n\nSecond, if s. 34(2) were concerned solely with the danger an applicant poses to the security of Canada, it would be impossible for a person found to be inadmissible under s. 34(1)(d) (“being a danger to the security of Canada”) to obtain relief under s. 34(2). This is an absurd interpretation which must be avoided.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11660,7 +11660,7 @@ "text": "Third, the respondent argues that, because of the possibility of H&C relief under s. 25 of the IRPA , the principle of consistent expression dictates that H&C factors should not be relevant to a determination of what is in the national interest under s. 34(2). I agree, but with some qualifications. H&C considerations are more properly considered in the context of a s. 25 application, and s. 34 should not be transformed into an alternative form of humanitarian review. But s. 34 does not necessarily exclude the consideration of personal factors that might be relevant to this particular form of review. For example, such considerations may have an impact on the assessment of the applicant’s personal characteristics for the purpose of determining whether he or she can be viewed as a threat to the security of Canada. Of the considerations in the Guidelines unrelated to national security and public safety which formed part of the Minister’s implied interpretation, only very few are H&C factors. The fact that the Minister considered such factors did not render his interpretation of the term “national interest” unreasonable.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11678,7 +11678,7 @@ "text": "Finally, the broader context of s. 34(2) of the IRPA also includes the Guidelines. Although not law in the strict sense, and although they are liable to evolve over time as the context changes, thus giving rise to new requirements adapted to different contexts, guidelines are “a useful indicator of what constitutes a reasonable interpretation of the . . . section” (Baker, at para. 72). The Guidelines were published in 2005, and they applied to applications for ministerial relief under s. 34(2) at the time the Minister reached his decision on the appellant’s application. As is evident from the numerous considerations contained in Appendix 1, the Guidelines represent a broad approach to the concept of the “national interest”. They do not simply equate the “national interest” with national security and public safety, as the Federal Court of Appeal did. Rather, they suggest that the national interest analysis is broader than that, although its focus may properly be on national security and public safety.\n\nThus, the Minister’s implied interpretation of the term “national interest” — that it relates predominantly to national security and public safety, but does not exclude the other important considerations outlined in the Guidelines or any analogous considerations — is consistent with all these contextual indications of the meaning of this term.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11696,7 +11696,7 @@ "text": "In summary, an analysis based on the principles of statutory interpretation reveals that a broad range of factors may be relevant to the determination of what is in the “national interest”, for the purposes of s. 34(2). Even excluding H&C considerations, which are more appropriately considered in the context of a s. 25 application, although the factors the Minister may validly consider are certainly not limitless, there are many of them. Perhaps the best illustration of the wide variety of factors which may validly be considered under s. 34(2) can be seen in the ones set out in the Guidelines (with the exception of the H&C considerations included in the Guidelines). Ultimately, which factors are relevant to the analysis in any given case will depend on the particulars of the application before the Minister (Soe, at para. 27; Tameh, at para. 43).\n\nThis interpretation is compatible with the interpretation of the term “national interest” the Minister might have given in support of his decision on the appellant’s application for relief. It is consistent with that decision. The Minister’s implied interpretation of the term related predominantly to national security and public safety, but did not exclude the other important considerations outlined in the Guidelines or any analogous considerations. In light of my discussion of the principles of statutory interpretation, this interpretation was eminently reasonable. F. Is the Minister’s Decision Valid?", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11714,7 +11714,7 @@ "text": "Having concluded that the Minister’s implied interpretation of the term “national interest” is reasonable, I should also confirm that the decision as a whole is valid. The Minister’s reasons were justifiable, transparent and intelligible. Although brief, they made clear the process he had followed in ruling on the appellant’s application. He reviewed and considered all the material and evidence before him. Having done so, he placed particular emphasis on: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF, a group that has engaged in terrorism; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. The Minister’s reasons revealed that, on the basis of his review of the evidence and other submissions as a whole, and of these factors in particular, he was not satisfied that the appellant’s continued presence in Canada would not be detrimental to the national interest. In short, his reasons allow this Court to clearly understand why he made the decision he did.\n\nFurthermore, the Minister’s decision falls within a range of possible acceptable outcomes which are defensible in light of the facts and the law. The burden was on the appellant to show that his continued presence in Canada would not be detrimental to the national interest. The Minister declined to provide discretionary relief to the appellant, as he was not satisfied that this burden had been discharged. His conclusion was acceptable in light of the facts which had been submitted to him.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11732,7 +11732,7 @@ "text": "As this Court held in Suresh, a court reviewing the reasonableness of a minister’s exercise of discretion is not entitled to engage in a new weighing process (para. 37; see also Lake v. Canada (Minister of Justice), 2008 SCC 23, [2008] 1 S.C.R. 761, at para. 39). As the Minister stated in his reasons, he had “reviewed and considered” (i.e. weighed) all the factors set out in the appellant’s application which were relevant to determining what was in the “national interest” in light of his reasonable interpretation of that term. He gave particular weight to certain factors pertaining to national security and public safety and emphasized them in his reasons, namely: the appellant’s contradictory and inconsistent accounts of his involvement with the LNSF; the fact that the appellant was most likely aware of the LNSF’s previous activity; and the fact that the appellant had had sustained contact with the LNSF. Given that the Minister considered and weighed all the relevant factors as he saw fit, it is not open to the Court to set the decision aside on the basis that it is unreasonable.\n\nIn all the circumstances, it cannot be said that either the result or the Minister’s decision as a whole was unreasonable. But a final issue remains: it relates to an allegation of a failure to meet the requirements of procedural fairness. G. Was the Decision Unfair, and Did It Fail to Meet the Appellant’s Legitimate Expectations?", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11750,7 +11750,7 @@ "text": "As this Court noted in Dunsmuir, at para. 79, “[p]rocedural fairness is a cornerstone of modern Canadian administrative law. Public decision makers are required to act fairly in coming to decisions that affect the rights, privileges or interests of an individual.” The Court’s comment that “[p]rocedural fairness has many faces” (Dunsmuir, at para. 77) is also relevant to this case.\n\nThe particular face of procedural fairness at issue in this appeal is the doctrine of legitimate expectations. This doctrine was given a strong foundation in Canadian administrative law in Baker, in which it was held to be a factor to be applied in determining what is required by the common law duty of fairness. If a public authority has made representations about the procedure it will follow in making a particular decision, or if it has consistently adhered to certain procedural practices in the past in making such a decision, the scope of the duty of procedural fairness owed to the affected person will be broader than it otherwise would have been. Likewise, if representations with respect to a substantive result have been made to an individual, the duty owed to him by the public authority in terms of the procedures it must follow before making a contrary decision will be more onerous.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11768,7 +11768,7 @@ "text": "The specific conditions which must be satisfied in order for the doctrine of legitimate expectations to apply are summarized succinctly in a leading authority entitled Judicial Review of Administrative Action in Canada: The distinguishing characteristic of a legitimate expectation is that it arises from some conduct of the decision-maker, or some other relevant actor. Thus, a legitimate expectation may result from an official practice or assurance that certain procedures will be followed as part of the decision-making process, or that a positive decision can be anticipated. As well, the existence of administrative rules of procedure, or a procedure on which the agency had voluntarily embarked in a particular instance, may give rise to a legitimate expectation that such procedures will be followed. Of course, the practice or conduct said to give rise to the reasonable expectation must be clear, unambiguous and unqualified. [Emphasis added.] (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at §7:1710; see also Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), 2001 SCC 41, [2001] 2 S.C.R. 281, at para. 29; Canada (Attorney General) v. Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, at para. 68.)\n\nIn Mavi, Binnie J. recently explained what is meant by “clear, unambiguous and unqualified” representations by drawing an analogy with the law of contract (at para. 69): Generally speaking, government representations will be considered sufficiently precise for purposes of the doctrine of legitimate expectations if, had they been made in the context of a private law contract, they would be sufficiently certain to be capable of enforcement.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11786,7 +11786,7 @@ "text": "An important limit on the doctrine of legitimate expectations is that it cannot give rise to substantive rights (Baker, at para. 26; Reference re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, at p. 557). In other words, “[w]here the conditions for its application are satisfied, the Court may [only] grant appropriate procedural remedies to respond to the ‘legitimate’ expectation” (C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 131 (emphasis added)).", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11804,7 +11804,7 @@ "text": "In the case at bar, the Guidelines created a clear, unambiguous and unqualified procedural framework for the handling of relief applications, and thus a legitimate expectation that that framework would be followed. The Guidelines were published by CIC, and, although CIC is not the Minister’s department, it is clear that they are “used by employees of [both] CIC and the CBSA for guidance in the exercise of their functions and in applying the legislation” (R.F., at para. 108). The Guidelines are and were publicly available, and, as Appendix 2 to these reasons illustrates, they constitute a relatively comprehensive procedural code for dealing with applications for ministerial relief. Thus, the appellant could reasonably expect that his application would be dealt with in accordance with the process set out in them. In brief, this process is as follows: 1. Following the receipt of an application for relief, the CIC officer provides the applicant with a copy of the “National Interest Information Sheet”. The applicant is given 15 days to send his or her submission to the local CIC office. 2. Upon receipt of the applicant’s submission, the CIC officer prepares a report which discusses the current situation regarding the applicant’s ground for inadmissibility, the details of the applicant’s application for relief, and any personal or exceptional circumstances of the applicant that should be considered. 3. The CIC report is forwarded to the National Security Division, Intelligence Directorate, CBSA, along with the applicant’s submission and all supporting documents. The CBSA may conduct further investigations at this stage. 4. The CBSA analyst prepares a recommendation to the Minister, which includes all supporting documentation. 5.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11822,7 +11822,7 @@ "text": "A copy of the recommendation to the Minister is disclosed to the applicant, who may then make additional submissions or provide additional documents in response. 6. The applicant’s original submission and its supporting documentation, the CIC officer’s report, the CBSA’s recommendation, and any additional submissions or documents received from the applicant in response to that recommendation are all forwarded to the Minister. 7. The Minister renders a decision on the application. The decision is entirely within the Minister’s discretion. 8. If the decision is negative, CIC issues a refusal letter to the applicant.\n\nThe appellant has not shown that his application was not dealt with in accordance with this process outlined in the Guidelines. In May 2002, he was advised of the ministerial relief process by way of a letter akin to the National Interest Information Sheet. He responded to this letter by making submissions through his counsel, and CIC then prepared its report. The CBSA prepared a briefing note for the Minister, which contained its recommendation, and this note was disclosed to the appellant. The appellant declined to make additional submissions or provide additional documents in response to the recommendation. The appellant’s submission and its supporting documentation, the CIC officer’s report, and the CBSA’s recommendation were all forwarded to the Minister, and the Minister rendered a decision on the application. As counsel for the appellant rightly acknowledges, “[i]n the Appellant’s case, the Ministerial relief process followed the process set out in the IP 10 guidelines” (A.F., at para. 53). His legitimate expectation in this regard was therefore fulfilled.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11840,7 +11840,7 @@ "text": "The appellant raises a further argument to the effect that he had a legitimate expectation that the Minister would consider certain factors in determining his relief application. The source of this alleged expectation is twofold. First, the appellant argues that the Guidelines created an expectation that the pertinent factors set out in Appendix 1 to these reasons would be considered. Second, he alleges that he had a legitimate expectation that H&C factors would be considered in determining his application as a result of a letter CIC had sent him on May 22, 2002. That letter read, in part, as follows: The Minister will consider whether granting you permanent residence to Canada would be contrary to the National Interest to Canada. This will require an assessment of the detriment that you pose to the National Interest of Canada, as well as any humanitarian and compassionate circumstances pertinent to your situation. [Emphasis added; A.R., vol. III, at p. 287.]", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11858,7 +11858,7 @@ "text": "Even were I to assume that the Guidelines and the letter unambiguously promised the appellant that certain factors would be considered in assessing his application for relief and that, at law, someone in his position might in fact have a legitimate expectation that certain factors would be considered in making a discretionary decision, his argument would nevertheless fail. As I mentioned above, the Minister’s implied interpretation of the term “national interest” encompasses all the factors referred to in the Guidelines. Also as I mentioned above, and as the appellant acknowledges, these factors include H&C factors (A.F., at para. 122). In a manner consistent with this interpretation of the term “national interest”, the Minister “reviewed and considered the material and evidence submitted in its entirety”. Therefore, if the appellant had a legitimate expectation that the Minister would consider certain factors, including H&C factors, in determining his application for relief, this expectation was fulfilled.\n\nIn my opinion, there was no failure to meet the appellant’s legitimate expectations or to discharge the duty of procedural fairness owed to him. The Minister’s decision cannot therefore be set aside on this basis. V. Conclusion\n\nAs a result, I would dismiss the appeal and allow the Minister’s decision under s. 34(2) of the IRPA to stand. In the circumstances, and taking particular account of the Minister’s inordinate delay in rendering a decision that was of the utmost importance to Mr. Agraira, I would make no order as to costs.", "current_to": "2013-06-20", "last_amended": "", - "history": "Also reported: [2013] 2 SCR 559", + "history": "[2013] 2 SCR 559", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/13137/index.do" }, { @@ -11876,7 +11876,7 @@ "text": "Binnie J. — At issue in this appeal is the extent to which, if at all, the exercise by judges of statutory powers of judicial review (such as those established by ss. 18 and 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 ) is governed by the common law principles lately analysed by our Court in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.\n\nThe respondent, Khosa, applied unsuccessfully to the Immigration Appeal Division (“IAD”) of the Immigration and Refugee Board to remain in Canada, notwithstanding his conviction for criminal negligence causing death in an automobile street race. A valid removal order had been issued to return him to India. The majority of the IAD did not accept that there were “sufficient humanitarian and compassionate considerations [to] warrant special relief [against the removal order] in light of all the circumstances of the case” within the meaning of s. 67(1) (c) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”). Applying the “patent unreasonableness” standard of review, the judicial review judge at first instance dismissed Khosa’s challenge to the IAD decision. However, applying a “reasonableness” simpliciter standard of review, a majority of the Federal Court of Appeal set aside the IAD decision. Dunsmuir (decided subsequently to both lower court decisions) did away with the distinction between “patent unreasonableness” and “reasonableness simpliciter” and substituted a more context-driven view of “reasonableness” that nevertheless “does not pave the way for a more intrusive review by courts” (para. 48).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11894,7 +11894,7 @@ "text": "The appellant Minister sought leave to appeal to this Court to argue that in any event s. 18.1 of the Federal Courts Act establishes a legislated standard of review that displaces the common law altogether. On this view, Dunsmuir is largely irrelevant to the current appeal. However, it is apparent that while the courts below differed on the choice of the appropriate common law standard of review, neither the judge at first instance nor any of the judges of the appellate court considered the common law of judicial review to be displaced by s. 18.1 of the Federal Courts Act . The trial court took the view that s. 18.1 of the Federal Courts Act deals essentially with grounds of review of administrative action, not standards of review, and the Federal Court of Appeal proceeded in the same way. I think this approach is correct although, as will be discussed, s. 18.1(4)(d) does provide legislative guidance as to “the degree of deference” owed to the IAD’s findings of fact.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11912,7 +11912,7 @@ "text": "Dunsmuir teaches that judicial review should be less concerned with the formulation of different standards of review and more focussed on substance, particularly on the nature of the issue that was before the administrative tribunal under review. Here, the decision of the IAD required the application of broad policy considerations to the facts as found to be relevant, and weighed for importance, by the IAD itself. The question whether Khosa had shown “sufficient humanitarian and compassionate considerations” to warrant relief from his removal order, which all parties acknowledged to be valid, was a decision which Parliament confided to the IAD, not to the courts. I conclude that on general principles of administrative law, including our Court’s recent decision in Dunsmuir, the applications judge was right to give a higher degree of deference to the IAD decision than seemed appropriate to the Federal Court of Appeal majority. In my view, the majority decision of the IAD was within a range of reasonable outcomes and the majority of the Federal Court of Appeal erred in intervening in this case to quash it. The appeal is therefore allowed and the decision of the Immigration Appeal Division is restored. I. Facts", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11930,7 +11930,7 @@ "text": "The respondent, Sukhvir Singh Khosa, is a citizen of India. He immigrated to Canada with his family in 1996, at the age of 14. He has landed immigrant status. During the evening of November 13, 2000, he and an individual named Bahadur Singh Bhalru, drove their respective cars at over 100 kilometres per hour along Marine Drive through a residential and commercial area of Vancouver. At their criminal trial, the court concluded that they were “street racing”. Khosa was prepared to plead guilty to a charge of dangerous driving, but not to the more serious charge of criminal negligence causing death, of which he was eventually convicted. The respondent continued to deny street racing, although he admitted that he was speeding and that his driving behaviour was exceptionally dangerous. On appeal from sentencing, the British Columbia Court of Appeal commented: . . . it is significant that the respondents were racing. They were driving at excessive speeds in competition with each other on a major street lined with both commercial and residential properties. They did this at a time when other vehicles and pedestrians reasonably could be expected to be on the roads. . . . The “spontaneous” nature of the race . . . mitigates the severity with which it should be assessed. The race was not planned, did not involve vehicles specifically modified for the purpose of racing, and was of relatively short duration. As unacceptable as the conduct of the respondents was, it represented a reckless error in judgment more than a deliberate endangerment of the public. (2003 BCCA 645, 190 B.C.A.C. 42, at paras.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11948,7 +11948,7 @@ "text": "33 and 36) As to the “moral culpability” of the respondent and his co-accused, the Court of Appeal continued: The Crown concedes that there are several factors which mitigate the moral culpability of the respondents in this case. Mr. Khosa and Mr. Bhalru are both young, have no prior criminal record or driving offences, have expressed remorse for the consequences of their conduct, and have favourable prospects for rehabilitation. . . . [para. 38]\n\nThe respondent received a conditional sentence of two years less a day. The conditions included house arrest, a driving ban, and community service, all of which were complied with prior to the IAD hearing. II. Judicial History A. Immigration Appeal Division, [2004] I.A.D.D. No. 1268 (QL) (1) The Majority\n\nThe majority of the IAD recognized (at para. 12) that its discretionary jurisdiction to grant “special relief” on humanitarian and compassionate grounds under s. 67(1) (c) of the IRPA should be exercised in light of the factors adopted in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at paras. 40, 41 and 90, namely: (1) the seriousness of the offence leading to the removal order; (2) the possibility of rehabilitation; (3) the length of time spent, and the degree to which the individual facing removal is established, in Canada; (4) the family and community support available to the individual facing removal; (5) the family in Canada and the dislocation to the family that removal would cause; and (6) the degree of hardship that would be caused to the individual facing removal to his country of nationality.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11966,7 +11966,7 @@ "text": "The majority considered that the last four Ribic factors were not particularly compelling for or against relief. As to the first two factors, the offence in question was “extremely serious” (para. 14) and the majority expressed particular concern over Khosa’s refusal to accept without reservation the finding that he had been street racing. The IAD majority considered that this refusal “reflects a lack of insight into his conduct” (para. 15). As to Khosa’s prospects for rehabilitation, the majority decided that there was insufficient evidence upon which to make a finding one way or the other (paras. 15 and 23). However, even if Khosa had good prospects for rehabilitation, “balancing all the relevant factors, . . . the scale does not tip in [Khosa’s] favour” (para. 23). Accordingly, “special relief” was denied. (2) The Dissent\n\nThe dissenting member of the IAD would also have denied the appeal, but she would have stayed the execution of the deportation order pending a further review in three years. She acknowledged the seriousness of the offence for which Khosa was convicted but found that it was mitigated by matters not considered important by the majority. Evidence of remorse and rehabilitation favoured relief. Having regard to the criminal proceedings, she noted that no penitentiary term was considered appropriate. The crime of which Khosa was convicted is not one of intent. There was no evidence of criminal propensity. The race was spontaneous and short. All sentencing conditions had been complied with. In the circumstances, she concluded that relief ought to be granted on humanitarian and compassionate grounds. B. Federal Court, 2005 FC 1218, 266 F.T.R. 138", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -11984,7 +11984,7 @@ "text": "Lutfy C.J. dismissed Khosa’s application for judicial review. He found that considerable deference was required, given the broad nature of the discretion vested in the IAD and its expertise in applying Ribic factors in appeals under s. 67(1) (c) of the IRPA . The appropriate standard of review is patent unreasonableness. Whether or not the IAD majority erred in its appreciation of the evidence in light of the Ribic factors is “substantially, if not completely, factual” (para. 29).\n\nLutfy C.J. said that the crux of Khosa’s argument was that the majority of the IAD erred by placing inordinate emphasis on his denial that his admittedly dangerous driving took place in the context of a street race, but the judge declined to reweigh the evidence, saying (at para. 36): In assessing Mr. Khosa’s expression of remorse, they [the majority] chose to place greater weight on his denial that he participated in a “race” than others might have. The IAD conclusion on the issue of remorse appears to differ from that of the criminal courts. The IAD, however, unlike the criminal courts, had the opportunity to assess Mr. Khosa’s testimony.\n\nIn the result, Lutfy C.J. held that there was no basis for concluding that “the majority opinion is patently unreasonable or, in the words of paragraph 18.1(4) (d) of the Federal Courts Act , one which was based on an erroneous finding of fact ‘made in a perverse or capricious manner or without regard for the material’” (para. 39). C. Federal Court of Appeal, 2007 FCA 24, [2007] 4 F.C.R. 332 (1) The Majority", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12002,7 +12002,7 @@ "text": "Décary J.A. (Malone J.A. concurring) disagreed with Lutfy C.J. on the appropriate standard of review. In his view, the applicable standard was “reasonableness”. Accordingly, “[s]ince the applications Judge applied the wrong standard of review, it is my duty, on appeal, to review the Board’s decision on the correct standard of review, that is, on the standard of reasonableness” (para. 14).\n\nWith respect to the second Ribic factor, Décary J.A. said that the “possibility of rehabilitation” is a criminal law concept with which the IAD does not have particular expertise. It should be wary of questioning findings of the criminal courts on matters falling squarely within their expertise. The majority “merely acknowledges the findings of the British Columbia courts in that regard, which are favourable to [Khosa], and does not explain why it comes to the contrary conclusion . . . . The whole of the evidence with respect to the conduct of [Khosa] after his sentencing undisputedly strengthens the findings of the criminal courts. Yet, the Board ignores that evidence and those findings” (para. 17). As to the “street racing” issue, Décary J.A. said: It clearly appears from the transcripts of the hearing that the presiding member — who wrote the majority decision — and counsel for the Crown, had some kind of fixation with the fact that the offence was related to street racing, to such a point that the hearing, time and time again, was transformed into a quasi-criminal trial, if not into a new criminal trial. [para. 18] For these reasons, Décary J.A. concluded that the majority had acted unreasonably. (2) The Dissent", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12020,7 +12020,7 @@ "text": "Desjardins J.A. concluded that the applications judge was right to apply the “patent unreasonableness” standard. She emphasized that the IAD has expertise in applying the Ribic factors in decisions under s. 67(1)(c) of the IRPA and that this exercise is “highly fact-based and contextual” (para. 36). Desjardins J.A. also emphasized the broad discretion conferred upon the IAD by s. 67(1) (c) of the IRPA . In her view, Lutfy C.J. had made no reviewable error. She would have dismissed the appeal. III. Relevant Statutory Provisions", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12038,7 +12038,7 @@ "text": "Immigration and Refugee Protection Act , S.C. 2001, c. 27 3. (1) The objectives of this Act with respect to immigration are . . . (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; 36. (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; 67. (1) To allow an appeal, the Immigration Appeal Division must be satisfied that, at the time that the appeal is disposed of, . . . (c) other than in the case of an appeal by the Minister, taking into account the best interests of a child directly affected by the decision, sufficient humanitarian and compassionate considerations warrant special relief in light of all the circumstances of the case. Federal Courts Act , R.S.C. 1985, c. F-7 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. (2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12056,7 +12056,7 @@ "text": "(3) On an application for judicial review, the Federal Court may (a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (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; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law. (5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may (a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and (b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate. IV. Analysis", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12074,7 +12074,7 @@ "text": "This appeal provides a good illustration of why the adjustment made by Dunsmuir was timely. By switching the standard of review from patent unreasonableness to reasonableness simpliciter, the Federal Court of Appeal majority felt empowered to retry the case in important respects, even though the issues to be resolved had to do with immigration policy, not law. Clearly, the majority felt that the IAD disposition was unjust to Khosa. However, Parliament saw fit to confide that particular decision to the IAD, not to the judges.\n\nIn cases where the legislature has enacted judicial review legislation, an analysis of that legislation is the first order of business. Our Court had earlier affirmed that, within constitutional limits, Parliament may by legislation specify a particular standard of review: see R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779. Nevertheless, the intended scope of judicial review legislation is to be interpreted in accordance with the usual rule that the terms of a statute are to be read purposefully in light of its text, context and objectives.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12092,7 +12092,7 @@ "text": "Generally speaking, most if not all judicial review statutes are drafted against the background of the common law of judicial review. Even the more comprehensive among them, such as the British Columbia Administrative Tribunals Act, S.B.C. 2004, c. 45, can only sensibly be interpreted in the common law context because, for example, it provides in s. 58(2)(a) that “a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable”. The expression “patently unreasonable” did not spring unassisted from the mind of the legislator. It was obviously intended to be understood in the context of the common law jurisprudence, although a number of indicia of patent unreasonableness are given in s. 58(3). Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. That said, of course, the legislature in s. 58 was and is directing the B.C. courts to afford administrators a high degree of deference on issues of fact, and effect must be given to this clearly expressed legislative intention. A. A Difference of Perspective\n\nAs Rand J. commented in Roncarelli v. Duplessis, [1959] S.C.R. 121, at p. 140, “there is always a perspective within which a statute is intended to operate”. This applies to s. 18.1 of the Federal Courts Act as much as it does to any other enactment.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12110,7 +12110,7 @@ "text": "My colleague Justice Rothstein adopts the perspective that in the absence of a privative clause or statutory direction to the contrary, express or implied, judicial review under s. 18.1 is to proceed “as it does in the regular appellate context” (para. 117). Rothstein J. writes: On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context. [Emphasis added.] I do not agree that such an implication is either necessary or desirable. My colleague states that “where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause” (para. 90), citing Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8 and 13. Housen, of course, was a regular appeal in a civil negligence case.\n\nOn this view, the reviewing court applies a standard of review of correctness unless otherwise directed to proceed (expressly or by necessary implication) by the legislature.\n\nRothstein J. writes, at para. 87, that the Court “depart[ed] from the conceptual origin of standard of review” in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557. Pezim was a unanimous decision of the Court which deferred to the expertise of a specialized tribunal in the interpretation of provisions of the Securities Act, S.B.C. 1985, c. 83, despite the presence of a right of appeal and the absence of a privative clause.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12128,7 +12128,7 @@ "text": "The conceptual underpinning of the law of judicial review was “further blurred”, my colleague writes, by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which treated the privative clause “simply as one of several factors in the calibration of deference (standard of review)” (para. 92). In my colleague’s view, “[i]t is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed” (para. 91).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12146,7 +12146,7 @@ "text": "I do not share Rothstein J.’s view that absent statutory direction, explicit or by necessary implication, no deference is owed to administrative decision-makers in matters that relate to their special role, function and expertise. Dunsmuir recognized that with or without a privative clause, a measure of deference has come to be accepted as appropriate where a particular decision had been allocated to an administrative decision-maker rather than to the courts. This deference extended not only to facts and policy but to a tribunal’s interpretation of its constitutive statute and related enactments because “there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and that courts ought not to interfere where the tribunal’s decision is rationally supported” (Dunsmuir, at para. 41). A policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime” (Dunsmuir, at para. 49, quoting Professor David J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93). Moreover, “[d]eference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context” (Dunsmuir, at para. 54).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12164,7 +12164,7 @@ "text": "Dunsmuir stands against the idea that in the absence of express statutory language or necessary implication, a reviewing court is “to apply a correctness standard as it does in the regular appellate context” (Rothstein J., at para. 117). Pezim has been cited and applied in numerous cases over the last 15 years. Its teaching is reflected in Dunsmuir. With respect, I would reject my colleague’s effort to roll back the Dunsmuir clock to an era where some courts asserted a level of skill and knowledge in administrative matters which further experience showed they did not possess. B. Section 18.1 of the Federal Courts Act\n\nGiven the differing perspectives that Rothstein J. and I bring to judicial review, it is not surprising that we differ on the role and function of s. 18.1 of the Federal Courts Act .\n\nIn my view, the interpretation of s. 18.1 of the Federal Courts Act must be sufficiently elastic to apply to the decisions of hundreds of different “types” of administrators, from Cabinet members to entry-level fonctionnaires, who operate in different decision-making environments under different statutes with distinct grants of decision-making powers. Some of these statutory grants have privative clauses; others do not. Some provide for a statutory right of appeal to the courts; others do not. It cannot have been Parliament’s intent to create by s. 18.1 of the Federal Courts Act a single, rigid Procrustean standard of decontextualized review for all “federal board[s], commission[s] or other tribunal[s]”, an expression which is defined (in s. 2) to include generally all federal administrative decision-makers. A flexible and contextual approach to s. 18.1 obviates the need for Parliament to set customized standards of review for each and every federal decision-maker.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12182,7 +12182,7 @@ "text": "The Minister’s reliance on Owen is misplaced. At issue in that case was the standard applicable to the highly specific task of judicial review of decisions of Review Boards set up under s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 , to deal with individuals found not criminally responsible (“NCR”) on account of a mental disorder. The mandate of these Boards is to determine the “least onerous and least restrictive” limits on the liberty of NCR individuals who remain a “significant threat to the safety of the public” (s. 672.54). On a statutory appeal (s. 672.78), the Court of Appeal is authorized to set aside a Review Board order on a number of grounds, namely (a) the decision is unreasonable or cannot be supported by the evidence; or, (b) the decision is based on a wrong decision on a question of law (unless no substantial wrong or miscarriage of justice has occurred); or (c) there was a miscarriage of justice.\n\nThe Owen court held that where Parliament has shown a clear intent then, absent any constitutional challenge, that is the standard of review that is to be applied (para. 32). This approach was affirmed in Dunsmuir where the majority said that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12200,7 +12200,7 @@ "text": "However, in Owen itself, even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review, as was made clear in the following paragraph: The first branch of the test corresponds with what the courts call the standard of review of reasonableness simpliciter, i.e., the Court of Appeal should ask itself whether the Board’s risk assessment and disposition order was unreasonable in the sense of not being supported by reasons that can bear even a somewhat probing examination . . . . [para. 33] And in the next paragraph: Resort must therefore be taken to the jurisprudence governing judicial review on a standard of reasonableness simpliciter . . . . [para. 34] See also Penetanguishene Mental Health Centre v. Ontario (Attorney General), 2004 SCC 20, [2004] 1 S.C.R. 498.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12218,7 +12218,7 @@ "text": "In Pinet v. St. Thomas Psychiatric Hospital, 2004 SCC 21, [2004] 1 S.C.R. 528, the Court dealt with the second branch of s. 672.78(1)(b) (“error of law”) on ordinary administrative law principles (clearly applying a correctness standard, at para. 25). As to the saving proviso (i.e., the decision may be set aside for an error of law unless “no substantial wrong or miscarriage of justice has occurred”), the Pinet court held that the party seeking to uphold the Review Board decision despite the error of law must “satisfy the appellate court that a Review Board, acting reasonably, and properly informed of the law, would necessarily have reached the same conclusion absent the legal error” (para. 28). None of this is explicit in the statute, but the common law was necessarily called in aid to fill in interstices in the legislation. See also Mazzei v. British Columbia (Director of Adult Forensic Psychiatric Services), 2006 SCC 7, [2006] 1 S.C.R. 326.\n\nResort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the Federal Courts Act which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal but covers the full galaxy of federal decision-makers. Section 18.1 must retain the flexibility to deal with an immense variety of circumstances. C. Matter of Statutory Interpretation", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12236,7 +12236,7 @@ "text": "The genesis of the Federal Courts Act lies in Parliament’s decision in 1971 to remove from the superior courts of the provinces the jurisdiction over prerogative writs, declarations, and injunctions against federal boards, commissions and other tribunals and to place that jurisdiction (slightly modified) in a new federal court. As Donald S. Maxwell, Q.C., the then Deputy Minister of Justice, explained to the House of Commons Standing Committee on Justice and Legal Affairs: Clause 18 is based on the philosophy that we want to remove the jurisdiction and prerogative matters from the Superior Courts of the provinces and place them in our own federal Superior Court. . . . . . . Having got them there, we think they are not entirely satisfactory. We feel that there should be improvements made on these remedies of certiorari and prohibition. This is what we are endeavouring to do in Clause 28. (See Minutes of Proceedings and Evidence of the Committee, No. 26, 2nd Sess., 28th Parl., May 7, 1970, at pp. 25‑26.) This transfer of jurisdiction was recognized and accepted in Pringle v. Fraser, [1972] S.C.R. 821; Howarth v. National Parole Board, [1976] 1 S.C.R. 453, at pp. 470-72, and Martineau v. Matsqui Institution Disciplinary Board, [1980] 1 S.C.R. 602, at p. 637, with the proviso that such transfer does not deprive the provincial superior courts of their jurisdiction to determine the constitutional validity and applicability of legislation: Attorney General of Canada v. Law Society of British Columbia, [1982] 2 S.C.R. 307. Subsequent amendments to the Act in 1990 (when s. 18.1 was added) clarified and simplified its expression and implementation, but did not have the effect of excluding the common law. R. Sullivan, Sullivan on the Construction of Statutes (5th ed.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12254,7 +12254,7 @@ "text": "2008), notes that “courts readily assume that reform legislation is meant to be assimilated into the existing body of common law” (p. 432; see also pp. 261-62).\n\nMy colleague Rothstein J. writes that “to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen” (para. 100). This assumes the point in issue, namely whether as a matter of interpretation, Parliament has or has not articulated the applicable standard of review in s. 18.1.\n\nIn my view, the language of s. 18.1 generally sets out threshold grounds which permit but do not require the court to grant relief. Whether or not the court should exercise its discretion in favour of the application will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the “circumstances of each case”: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575. Further, “[i]n one sense, whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99). Of course, the discretion must be exercised judicially, but the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12272,7 +12272,7 @@ "text": "On this point, as well, my colleague Rothstein J. expresses disagreement. He cites a number of decisions dealing with different applications of the Court’s discretion. He draws from these cases the negative inference that other applications of the discretion are excluded from s. 18.1(4). In my view, with respect, such a negative inference is not warranted. Decisions that address unrelated problems are no substitute for a proper statutory analysis of s. 18.1(4) itself which in the English text provides that 18.1 . . . (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal . . .", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12290,7 +12290,7 @@ "text": "A different concern emerges from the equally authoritative French text of s. 18.1(4) which reads: 18.1 . . . (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : . . . Generally speaking, the use of the present indicative tense (sont prises) is not to be read as conferring a discretion: see s. 11 of the French version of the Interpretation Act , R.S.C. 1985, c. I-21 , and P.-A. Côté, The Interpretation of Legislation in Canada (3rd ed. 2000), p. 72, fn. 123 (in the French edition, the point is canvassed by Professor Côté, at p. 91, fn. 123). It has been truly remarked in the context of bilingual legislation that “Canadians read only one version of the law at their peril”: M. Bastarache et al., The Law of Bilingual Interpretation (2008), at p. 32. However, the text of s. 18.1(4) must be interpreted not only in accordance with the rules governing bilingual statutes but within the larger framework of the modern rule 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.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12308,7 +12308,7 @@ "text": "The English version of s. 18.1(4) is permissive; the court is clearly given discretion. In the French version, the words “sont prises” translate literally as “are taken” which do not, on the face of it, confer a discretion. A shared meaning on this point is difficult to discern. Nevertheless, the linguistic difference must be reconciled as judges cannot be seen to be applying s. 18.1(4) differently across the country depending on which language version of s. 18.1(4) they happen to be reading. In R. v. Daoust, 2004 SCC 6, [2004] 1 S.C.R. 217, at para. 26, the Court cited with approval the following approach: Unless otherwise provided, differences between two official versions of the same enactment are reconciled by educing the meaning common to both. Should this prove to be impossible, or if the common meaning seems incompatible with the intention of the legislature as indicated by the ordinary rules of interpretation, the meaning arrived at by the ordinary rules should be retained. (Quoting Côté, at p. 324.) (See also Bastarache et al., at p. 32.) Linguistic analysis of the text is the servant, not the master, in the task of ascertaining Parliamentary intention: see Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1071-72 (Lamer J. dissenting in part, but not on this point). A blinkered focus on the textual variations might lead to an interpretation at odds with the modern rule because, standing alone, linguistic considerations ought not to elevate an argument about text above the relevant context, purpose and objectives of the legislative scheme: see Sullivan, at p. 116.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12326,7 +12326,7 @@ "text": "Here the English version cannot be read so as to compel the court to grant relief: the word “may” is unquestionably permissive. In Bastarache et al., it is said that “the clearer version provides the common meaning” (p. 67), but it cannot be said that the French text here is ambiguous. Accordingly, the linguistic issue must be placed in the framework of the modern rules of statutory interpretation that give effect not only to the text but to context and purpose. There is nothing in the context or purpose of the enactment to suggest a Parliamentary intent to eliminate the long-standing existence of a discretion in judicial review remedies. As mentioned earlier, the principal legislative objective was simply to capture the judicial review of federal decision-makers for the Federal Court. Under the general public law of Canada (then as now), the granting of declarations and the original prerogative and extraordinary remedies, and subsequent statutory variations thereof, have generally been considered to be discretionary, as discussed by Beetz J. in Harelkin. The Federal Court’s discretion in matters of judicial review has repeatedly been affirmed by this Court: see Solosky v. The Queen, [1980] 1 S.C.R. 821, at pp. 830-31; Canada (Auditor General) v. Canada (Minister of Energy, Mines and Resources), [1989] 2 S.C.R. 49, at pp. 92-93, and Friends of the Oldman River Society v. Canada (Minister of Transport), [1992] 1 S.C.R. 3, at pp. 77-80. The Federal Courts themselves have repeatedly asserted, notwithstanding the problem posed by the French text of s. 18.1(4), the existence of a discretion in the exercise of their judicial review jurisdiction (and quite properly so in my opinion) both in decisions rendered in French (see, e.g., Canada v.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12344,7 +12344,7 @@ "text": "Grenier, 2005 CAF 348, [2006] 2 F.C.R. 287, per Létourneau J.A., at para. 40, and Devinat v. Canada (Commission de l’immigration et du status de réfugié), [2000] 2 F.C. 212 (C.A.), per The Court, at para. 73) and in English (see, e.g., Thanabalasingham v. Canada (Minister of Citizenship and Immigration), 2006 FCA 14, 263 D.L.R. (4th) 51, per Evans J.A., at para. 9; Charette v. Canada (Commissioner of Competition), 2003 FCA 426, 29 C.P.R. (4th) 1, per Sexton J.A., at para. 61, and Pal v. Canada (Minister of Employment and Immigration) (1993), 24 Admin. L.R. (2d) 68, per Reed J., at para. 9). I conclude that notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief, a discretion which, of course, must be exercised judicially and in accordance with proper principles. In my view, those principles include those set out in Dunsmuir.\n\nWith these general observations I turn to the particular paragraphs of s. 18.1(4) of the Federal Courts Act that, in my view, enable but do not require judicial intervention.\n\nSection 18.1(4)(a) provides for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; No standard of review is specified. Dunsmuir says that jurisdictional issues command a correctness standard (majority, at para. 59). The Federal Courts Act does not indicate in what circumstances, despite jurisdictional error having been demonstrated, relief may properly be withheld. For that and other issues, resort will have to be had to the common law. See Harelkin, at pp. 575-76.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12362,7 +12362,7 @@ "text": "Judicial intervention is also authorized where a federal board, commission or other tribunal (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; No standard of review is specified. On the other hand, Dunsmuir says that procedural issues (subject to competent legislative override) are to be determined by a court on the basis of a correctness standard of review. Relief in such cases is governed by common law principles, including the withholding of relief when the procedural error is purely technical and occasions no substantial wrong or miscarriage of justice (Pal, at para. 9). This is confirmed by s. 18.1(5). It may have been thought that the Federal Court, being a statutory court, required a specific grant of power to “make an order validating the decision” (s. 18.1(5)) where appropriate.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12380,7 +12380,7 @@ "text": "Judicial intervention is authorized where a federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; Errors of law are generally governed by a correctness standard. Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 37, for example, held that the general questions of international law and criminal law at issue in that case had to be decided on a standard of correctness. Dunsmuir (at para. 54), says that if the interpretation of the home statute or a closely related statute by an expert decision-maker is reasonable, there is no error of law justifying intervention. Accordingly, para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute. This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised. Once again, the open textured language of the Federal Courts Act is supplemented by the common law.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12398,7 +12398,7 @@ "text": "Judicial intervention is further authorized where a federal board, commission or other tribunal (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; The legislator would have been aware of the great importance attached by some judicial decisions to so-called “jurisdictional fact finding”; see, e.g., Bell v. Ontario Human Rights Commission, [1971] S.C.R. 756, and Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. Parliament clearly wished to put an end to the tendency of some courts to seize on a “preliminary fact” on which the administrative agency’s decision was said to be based to quash a decision. In Bell, the “jurisdictional fact” was whether the residential accommodation in respect of which a prospective tenant claimed rental discrimination was a “self-contained dwelling unit”. The Court disagreed with the Human Rights Commission, which had “based” its decision on this threshold fact. Viewed in this light, s. 18.1(4)(d) was intended to confirm by legislation what Dickson J. had said in New Brunswick Liquor Corp., namely that judges should “not be alert to brand as jurisdictional, and therefore subject to broader curial review, that which may be doubtfully so” (p. 233).\n\nMore generally, it is 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 .", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12416,7 +12416,7 @@ "text": "Paragraph (e) contemplates a question of mixed fact and law namely that the federal board, commission or other tribunal (e) acted, or failed to act, by reason of fraud or perjured evidence; The common law would not allow a statutory decision-maker to rely on fraudulent or perjured testimony. The court would be expected to exercise its discretion in favour of the applicant under para. (e) as well.\n\nSection 18.1(4)(f) permits judicial intervention if the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. A reference to “contrary to law” necessarily includes “law” outside the Federal Courts Act including general principles of administrative law. Paragraph (f) shows, if further demonstration were necessary, that s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir.\n\nIn Federal Courts Practice 2009 (2008), B. J. Saunders et al. state, at pp. 112-13: Grounds for Review Section 18.1(4) sets out the grounds which an applicant must establish to succeed on an application for judicial review. The grounds are broadly stated and reflect, generally, the grounds upon which judicial review could be obtained under the prerogative and extraordinary remedies listed in section 18(1). Section 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review. [Emphasis added.]", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12434,7 +12434,7 @@ "text": "I readily accept, of course, that the legislature can by clear and explicit language oust the common law in this as in other matters. Many provinces and territories have enacted judicial review legislation which not only provide guidance to the courts but have the added benefit of making the law more understandable and accessible to interested members of the public. The diversity of such laws makes generalization difficult. In some jurisdictions (as in British Columbia), the legislature has moved closer to a form of codification than has Parliament in the Federal Courts Act . Most jurisdictions in Canada seem to favour a legislative approach that explicitly identifies the grounds for review but not the standard of review.1 In other provinces, some laws specify “patent unreasonableness”.2 In few of these statutes, however, is the content of the specified standard of review defined, leading to the inference that the legislatures left the content to be supplied by the common law.\n\nAs stated at the outset, a legislature has the power to specify a standard of review, as held in Owen, if it manifests a clear intention to do so. However, where the legislative language permits, the courts (a) will not interpret grounds of review as standards of review, (b) will apply Dunsmuir principles to determine the appropriate approach to judicial review in a particular situation, and (c) will presume the existence of a discretion to grant or withhold relief based on the Dunsmuir teaching of restraint in judicial intervention in administrative matters (as well as other factors such as an applicant’s delay, failure to exhaust adequate alternate remedies, mootness, prematurity, bad faith and so forth). D. Standard of Review Analysis", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12452,7 +12452,7 @@ "text": "Dunsmuir states that “[c]ourts, 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” (para. 27).\n\nThe process of judicial review involves two steps. First, Dunsmuir says that “[a]n exhaustive review is not required in every case to determine the proper standard of review” (para. 57). As between correctness and reasonableness, the “existing jurisprudence may be helpful” (para. 57). And so it is in this case. Dunsmuir renders moot the dispute in the lower courts between patent unreasonableness and reasonableness. No authority was cited to us that suggests a “correctness” standard of review is appropriate for IAD decisions under s. 67(1) (c) of the IRPA . Accordingly, “existing jurisprudence” points to adoption of a “reasonableness” standard.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12470,7 +12470,7 @@ "text": "This conclusion is reinforced by the second step of the analysis when jurisprudential categories are not conclusive. Factors then to be considered include: (1) the presence or absence of a privative clause; (2) the purpose of the IAD as determined by its enabling legislation; (3) the nature of the question at issue before the IAD; and (4) the expertise of the IAD in dealing with immigration policy (Dunsmuir, at para. 64). Those factors have to be considered as a whole, bearing in mind that not all factors will necessarily be relevant for every single case. A contextualized approach is required. Factors should not be taken as items on a check list of criteria that need to be individually analysed, categorized and balanced in each case to determine whether deference is appropriate or not. What is required is an overall evaluation. Nevertheless, having regard to the argument made before us, I propose to comment on the different factors identified in Dunsmuir, all of which in my view point to a reasonableness standard.\n\nAs to the presence of a privative clause, s. 162(1) of the IRPA provides that “[e]ach 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”. A privative clause is an important indicator of legislative intent. While privative clauses deter judicial intervention, a statutory right of appeal may be at ease with it, depending on its terms. Here, there is no statutory right of appeal.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12488,7 +12488,7 @@ "text": "As to the purpose of the IAD as determined by its enabling legislation, the IAD determines a wide range of appeals under the IRPA , including appeals from permanent residents or protected persons of their deportation orders, appeals from persons seeking to sponsor members of the family class, and appeals by permanent residents against decisions made outside of Canada on their residency obligations, as well as appeals by the Minister against decisions of the Immigration Division taken at admissibility hearings (s. 63). A decision of the IAD is reviewable only if the Federal Court grants leave to commence judicial review (s. 72).\n\nIn recognition that hardship may come from removal, Parliament has provided in s. 67(1)(c) a power to grant exceptional relief. The nature of the question posed by s. 67(1)(c) requires the IAD to be “satisfied that, at the time that the appeal is disposed of . . . sufficient humanitarian and compassionate considerations warrant special relief”. Not only is it left to the IAD to determine what constitute “humanitarian and compassionate considerations”, but the “sufficiency” of such considerations in a particular case as well. Section 67(1)(c) calls for a fact‑dependent and policy‑driven assessment by the IAD itself. As noted in Prata v. Minister of Manpower and Immigration, [1976] 1 S.C.R. 376, at p. 380, a removal order establishes that, in the absence of some special privilege existing, [an individual subject to a lawful removal order] has no right whatever to remain in Canada. [An individual appealing a lawful removal order] does not, therefore, attempt to assert a right, but, rather, attempts to obtain a discretionary privilege. [Emphasis added.]", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12506,7 +12506,7 @@ "text": "The respondent raised no issue of practice or procedure. He accepted that the removal order had been validly made against him pursuant to s. 36(1) of the IRPA . His attack was simply a frontal challenge to the IAD’s refusal to grant him a “discretionary privilege”. The IAD decision to withhold relief was based on an assessment of the facts of the file. The IAD had the advantage of conducting the hearings and assessing the evidence presented, including the evidence of the respondent himself. IAD members have considerable expertise in determining appeals under the IRPA . Those factors, considered altogether, clearly point to the application of a reasonableness standard of review. There are no considerations that might lead to a different result. Nor is there anything in s. 18.1(4) that would conflict with the adoption of a “reasonableness” standard of review in s. 67(1)(c) cases. I conclude, accordingly, that “reasonableness” is the appropriate standard of review. E. Applying the “Reasonableness” Standard", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12524,7 +12524,7 @@ "text": "Reasonableness is a single standard that takes its colour from the context. One of the objectives of Dunsmuir was to liberate judicial review courts from what came to be seen as undue complexity and formalism. Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within “a range of possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome.\n\nIn my view, having in mind the considerable deference owed to the IAD and the broad scope of discretion conferred by the IRPA , there was no basis for the Federal Court of Appeal to interfere with the IAD decision to refuse special relief in this case.\n\nMy colleague Fish J. agrees that the standard of review is reasonableness, but he would allow the appeal. He writes: While Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence. [para. 149] I do not believe that it is the function of the reviewing court to reweigh the evidence.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12542,7 +12542,7 @@ "text": "It is apparent that Fish J. takes a different view than I do of the range of outcomes reasonably open to the IAD in the circumstances of this case. My view is predicated on what I have already said about the role and function of the IAD as well as the fact that Khosa does not contest the validity of the removal order made against him. He seeks exceptional and discretionary relief that is available only if the IAD itself is satisfied that “sufficient humanitarian and compassionate considerations warrant special relief”. The IAD majority was not so satisfied. Whether we agree with a particular IAD decision or not is beside the point. The decision was entrusted by Parliament to the IAD, not to the judges.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12560,7 +12560,7 @@ "text": "The Dunsmuir majority held: A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47] Dunsmuir thus reinforces in the context of adjudicative tribunals the importance of reasons, which constitute the primary form of accountability of the decision-maker to the applicant, to the public and to a reviewing court. Although the Dunsmuir majority refers with approval to the proposition that an appropriate degree of deference “requires of the courts ‘not submission but a respectful attention to the reasons offered or which could be offered in support of a decision’” (para. 48 (emphasis added)), I do not think the reference to reasons which “could be offered” (but were not) should be taken as diluting the importance of giving proper reasons for an administrative decision, as stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, at para. 43. Baker itself was concerned with an application on “humanitarian and compassionate grounds” for relief from a removal order.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12578,7 +12578,7 @@ "text": "In this case, both the majority and dissenting reasons of the IAD disclose with clarity the considerations in support of both points of view, and the reasons for the disagreement as to outcome. At the factual level, the IAD divided in large part over differing interpretations of Khosa’s expression of remorse, as was pointed out by Lutfy C.J. According to the IAD majority: It is troublesome to the panel that [Khosa] continues to deny that his participation in a “street-race” led to the disastrous consequences. . . . At the same time, I am mindful of [Khosa’s] show of relative remorse at this hearing for his excessive speed in a public roadway and note the trial judge’s finding of this remorse . . . . This show of remorse is a positive factor going to the exercise of special relief. However, I do not see it as a compelling feature of the case in light of the limited nature of [Khosa’s] admissions at this hearing. [Emphasis added; para. 15.] According to the IAD dissent on the other hand: . . . from early on he [Khosa] has accepted responsibility for his actions. He was prepared to plead guilty to dangerous driving causing death . . . . I find that [Khosa] is contrite and remorseful. [Khosa] at hearing was regretful, his voice tremulous and filled with emotion. . . . . . . The majority of this panel have placed great significance on [Khosa’s] dispute that he was racing, when the criminal court found he was. And while they concluded this was “not fatal” to his appeal, they also determined that his continued denial that he was racing “reflects a lack of insight.” The panel concluded that this “is not to his credit.” The panel found that [Khosa] was remorseful, but concluded it was not a “compelling feature in light of the limited nature of [Khosa’s] admissions”.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12596,7 +12596,7 @@ "text": "However I find [Khosa’s] remorse, even in light of his denial he was racing, is genuine and is evidence that [Khosa] will in future be more thoughtful and will avoid such recklessness. [paras. 50-51 and 53-54] It seems evident that this is the sort of factual dispute which should be resolved by the IAD in the application of immigration policy, and not reweighed in the courts.\n\nIn terms of transparent and intelligible reasons, the majority considered each of the Ribic factors. It rightly observed that the factors are not exhaustive and that the weight to be attributed to them will vary from case to case (para. 12). The majority reviewed the evidence and decided that, in the circumstances of this case, most of the factors did not militate strongly for or against relief. Acknowledging the findings of the criminal courts on the seriousness of the offence and possibility of rehabilitation (the first and second of the Ribic factors), it found that the offence of which the respondent was convicted was serious and that the prospects of rehabilitation were difficult to assess (para. 23).\n\nThe weight to be given to the respondent’s evidence of remorse and his prospects for rehabilitation depended on an assessment of his evidence in light of all the circumstances of the case. The IAD has a mandate different from that of the criminal courts. Khosa did not testify at his criminal trial, but he did before the IAD. The issue before the IAD was not the potential for rehabilitation for purposes of sentencing, but rather whether the prospects for rehabilitation were such that, alone or in combination with other factors, they warranted special relief from a valid removal order. The IAD was required to reach its own conclusions based on its own appreciation of the evidence. It did so.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12614,7 +12614,7 @@ "text": "As mentioned, the courts below recognized some merit in Khosa’s complaint. Lutfy C.J. recognized that the majority “chose to place greater weight on his denial that he participated in a race than others might have” (para. 36). Décary J.A. described the majority’s preoccupation with street racing as “some kind of fixation” (para. 18). My colleague Fish J. also decries the weight put on this factor by the majority (para. 141). However, as emphasized in Dunsmuir, “certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions” (para. 47). In light of the deference properly owed to the IAD under s. 67(1) (c) of the IRPA , I cannot, with respect, agree with my colleague Fish J. that the decision reached by the majority in this case to deny special discretionary relief against a valid removal order fell outside the range of reasonable outcomes. V. Disposition\n\nThe appeal is allowed and the decision of the IAD is restored. The following are the reasons delivered by\n\nRothstein J. — I have had the benefit of reading the reasons of my colleague Justice Binnie allowing this appeal. While I concur with this outcome, I respectfully disagree with the majority’s approach to the application of the Dunsmuir standard of review analysis under s. 18.1 of the Federal Courts Act , R.S.C. 1985, c. F-7 (“FCA ”). I. Introduction", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12632,7 +12632,7 @@ "text": "The central issue in this case is whether the FCA expressly, or by necessary implication, provides the standards of review to be applied on judicial review, and if so, whether this displaces the common law standard of review analysis recently articulated in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190. The majority is of the view that the Dunsmuir standard of review analysis is to be read into s. 18.1(4) of the FCA . In my view, courts must give effect to the legislature’s words and cannot superimpose on them a duplicative common law analysis. Where the legislature has expressly or impliedly provided for standards of review, courts must follow that legislative intent, subject to any constitutional challenge.\n\nSection 18.1(4) of the FCA states: (4) [Grounds of review] The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; (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; (e) acted, or failed to act, by reason of fraud or perjured evidence; or (f) acted in any other way that was contrary to law.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12650,7 +12650,7 @@ "text": "The language of s. 18.1(4)(d) makes clear that findings of fact are to be reviewed on a highly deferential standard. Courts are only to interfere with a decision based on erroneous findings of fact where the federal board, commission or other tribunal’s factual finding was “made in a perverse or capricious manner or without regard for the material before it”. By contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for a deferential standard, its intent was that no deference be shown. As I will explain, the language and context of s. 18.1(4), and in particular the absence of deferential wording, demonstrates that a correctness standard is to be applied to questions of jurisdiction, natural justice, law and fraud. The language of s. 18.1(4)(d) indicates that deference is only to be applied to questions of fact.\n\nDunsmuir reaffirmed that “determining the applicable standard of review is accomplished by establishing legislative intent” (para. 30). The present majority’s insistence that Dunsmuir applies even where Parliament specifies a standard of review is inconsistent with that search for legislative intent, in my respectful view.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12668,7 +12668,7 @@ "text": "Standard of review developed as a means to reconcile the tension that privative clauses create between the rule of law and legislative supremacy: see U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048. “Full” or “strong” privative clauses that purport to preclude the judicial review of a question brought before a reviewing court give rise to this judicial-legislative tension, which deference and standard of review were developed to resolve: see Pasiechnyk v. Saskatchewan (Workers’ Compensation Board), [1997] 2 S.C.R. 890, at para. 17, for a discussion of the nature of privative clauses. In my opinion, the application of Dunsmuir outside the strong privative clause context marks a departure from the conceptual and jurisprudential origins of the standard of review analysis.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12686,7 +12686,7 @@ "text": "In my view, the question of whether the Dunsmuir standard of review analysis applies to judicial review under s. 18.1 of the FCA becomes clear when one examines the conceptual basis for the common law standard of review analysis. As explained in part II, standard of review emerged as a means to reconcile the judicial-legislative tension to which privative clauses gave rise. The legislature’s desire to immunize certain administrative decisions from judicial scrutiny conflicted with the constitutional supervisory role of the courts and, as such, required a juridical response that could reconcile these competing requirements. Deference and standard of review was the result. It was the departure from this conceptual origin that blurred the role of the privative clause as the legislature’s communicative signal of relative expertise, and in doing so, the Court moved away from the search for legislative intent that governs this area. In part III, I refer to this Court’s jurisprudence on the judicial recognition of legislated standards of review. That jurisprudence is clear that courts must give effect to legislated standards of review, subject to any constitutional challenges. In part IV, I explain that having regard to the conceptual origin of standard of review and the jurisprudence on legislated standards of review, s. 18.1(4) of the FCA occupies the field of standard of review and therefore ousts the common law on that question, excepting in cases of a strong privative clause. In part V, I conclude by briefly considering the Immigration Appeal Division (“IAD”) decision in this case. Like the majority, I would allow the appeal. II. The Place of Standard of Review: Reconciling the Judicial-Legislative Tension of the Privative Clause A. The Judicial-Legislative Tension", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12704,7 +12704,7 @@ "text": "Absent a privative clause, courts have always retained a supervisory judicial review role. In the provinces, provincial superior courts have inherent jurisdiction and in most, if not all, cases statutory judicial review jurisdiction. In the federal context, the FCA transferred this inherent jurisdiction from the provincial superior courts to the Federal Courts. Where applicable, statutory rights of appeal also grant affected parties the right to appeal an administrative decision to court. This residual judicial review jurisdiction means that courts retained authority to ensure the rule of law even as delegated administrative decision making emerged. La Forest and Iacobucci JJ. acknowledged this in Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554, when La Forest J. wrote that [i]n the absence of other provisions indicating a disposition to limit judicial review, the normal supervisory role of the courts remains. The administrative tribunal, of course, is authorized to make determinations on these questions, but they are not to be insulated from the general supervisory role of the courts. [p. 584] The legislature was well aware that parties who perceived an administrative injustice would still have recourse to the courts.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12722,7 +12722,7 @@ "text": "The question is, however, whether the creation of expert tribunals automatically meant that there was to be some limitation on the judicial review role of the courts, in particular on questions of law. Where the legislature enacted strong privative clauses precluding review for legal error, there is no doubt that this was the legislative intent. In my opinion, the same limit on judicial review cannot be inferred merely from the establishment of a tribunal when the legislature did not seek to immunize the tribunal’s decisions from judicial review. In those cases, the creation of an administrative decision-maker did not by itself give rise to a tension with the supervisory role of the courts.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12740,7 +12740,7 @@ "text": "In contrast, the majority appears to understand the judicial review of administrative decisions as automatically engaging a judicial-legislative tension, which the standard of review analysis seeks to resolve. In Dunsmuir, Bastarache and LeBel JJ., writing for the majority, described this as follows: 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. [Emphasis added; para. 27.] As I understand this reasoning, the legislature displaced (or attempted to displace) judicial decision making in some areas by creating administrative bodies. From this viewpoint, the standard of review functions as a necessary balancing exercise between the courts’ constitutional exercise of judicial review and the legislative desire to delegate certain powers to administrative bodies.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12758,7 +12758,7 @@ "text": "In my opinion, in the absence of a strong privative clause such as existed in Dunsmuir, there are important reasons to question whether this view is applicable. Broadly speaking, it is true of course that the creation of expert administrative decision-makers evidenced a legislative intent to displace or bypass the courts as primary adjudicators in a number of areas. As Professor W. A. Bogart notes, “[t]he core idea was that the legislature wanted to regulate some area but wished someone else, an administrative actor, to carry out the regulation for reasons of expertise, expediency, access, independence from the political process, and so forth” (“The Tools of the Administrative State and the Regulatory Mix”, in C. M. Flood and L. Sossin, eds., Administrative Law in Context (2008), 25, at p. 31). It was only with the enactment of privative clauses, however, that the legislature evidenced an intent to oust, or at the very least restrict, the court’s review role.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12776,7 +12776,7 @@ "text": "The most obvious case was labour relations. Labour relations boards were created during the First and Second World Wars, in part to stave off labour unrest: see R. J. Charney and T. E. F. Brady, Judicial Review in Labour Law (loose-leaf), at pp. 2-1 to 2-17. In order to protect the boards from judicial intervention, the legislature enacted strong privative clauses. Professor Audrey Macklin notes that “[f]rustrated with judicial hostility toward the objectives of labour relations legislation, the government not only established a parallel administrative regime of labour relations boards, but also enacted statutory provisions that purported to preclude entirely judicial review of the legality of administrative action”: “Standard of Review: The Pragmatic and Functional Test”, in Administrative Law in Context, 197, at p. 199. While there are different types of privative clauses, the labour relations context gave rise to strong privative clauses that typically purported to preclude review not only of factual findings, but also legal and jurisdictional decisions of the tribunal: see Pasiechnyk, at para. 17 (discussing what constitutes a “full” or “true” privative clause).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12794,7 +12794,7 @@ "text": "In attempting to preclude judicial review, privative clauses gave rise to a tension between the two core pillars of the public law system: legislative supremacy and the judicial enforcement of law: see D. Dyzenhaus, “Disobeying Parliament? Privative Clauses and the Rule of Law”, in R. W. Bauman and T. Kahana, eds., The Least Examined Branch: The Role of Legislatures in the Constitutional State (2006), 499, at p. 500. Strong privative clauses reflected the legislature’s intent to make administrative decisions final and thereby beyond the purview of judicial scrutiny. This conflicts with the rule of law principle of accountability, for which access to courts is necessary. As Professor Mary Liston notes: The risk to the accountability function of the rule of law was that these officials could behave as a law unto themselves because they would be the sole judges of the substantive validity of their own acts. The institutional result of privative clauses was a system of competing and irreconcilable supremacies between the legislative and judicial branches of government. (“Governments in Miniature: The Rule of Law in the Administrative State”, in Administrative Law in Context, 77, at p. 104) Faced with these competing “supremacies”, courts were forced to develop a juridical approach that would reconcile, or at least alleviate, this tension. In Canada, courts opted for the deference approach. B. The Origins of the Standard of Review Analysis: Resolving the Privative Clause Tension", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12812,7 +12812,7 @@ "text": "The deference approach emerged as a means of reconciling Parliament’s intent to immunize certain administrative decisions from review with the supervisory role of courts in a rule of law system. This approach originated with Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 (“C.U.P.E.”). In reviewing a labour tribunal decision, Dickson J., as he then was, wrote that the privative clause “constitutes a clear statutory direction on the part of the Legislature that public sector labour matters be promptly and finally decided by the [Public Service Labour Relations] Board” (p. 235). The decision of the Board was protected so long as it was not “so patently unreasonable that the Board . . . did ‘something which takes the exercise of its powers outside the protection of the privative or preclusive clause’” (p. 237).\n\nThe deference approach sought to give effect to the legislature’s recognition that the administrative decision-maker had relative expertise on some or all questions. The privative clause indicated the area of tribunal expertise that the legislature was satisfied warranted deference. As Professor Dyzenhaus explains: . . . CUPE involves more than concession. Right at the outset of the development of the idea of deference, it was clear that there was a judicial cession of interpretative authority to the tribunal, within the scope of its expertise — the area of jurisdiction protected by the privative clause. The cession was not total — the tribunal could not be patently unreasonable. But it was significant because it required that judges defer to the administration’s interpretations of the law, except on jurisdictional, constitutional, or constitution like issues. [Emphasis added; p. 512.]", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12830,7 +12830,7 @@ "text": "It is clear in C.U.P.E. that the deferential approach was contingent upon and shaped by the relevant privative clause. Interpretive authority was only ceded to tribunals in the area “within the scope of its expertise — the area of jurisdiction protected by the privative clause”. A strong privative clause that protected legal as well as factual and discretionary decisions meant that the legislature recognized the tribunal as having relative expertise with respect to all these questions. Dickson J. emphasized that the legislature’s frequent use of privative clauses in the labour relations context was intimately connected to tribunal expertise. He wrote that “[t]he rationale for protection of a labour board’s decisions within jurisdiction is straightforward and compelling. The labour board is a specialized tribunal which administers a comprehensive statute regulating labour relations” (p. 235). In other words, tribunal expertise was a compelling rationale for imposing a privative clause. It was not, however, a free-standing basis for deference.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12848,7 +12848,7 @@ "text": "A further step in the development of the deference approach was Bibeault, when this Court introduced the pragmatic and functional approach for determining the appropriate standard of review. The pragmatic and functional approach, now known simply as the standard of review analysis, was intended to focus “the Court’s inquiry directly on the intent of the legislator rather than on interpretation of an isolated provision” (p. 1089). In reviewing a decision-maker protected by a strong privative clause, this more expansive analysis examined “not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal” (p. 1088). Beetz J. emphasized the overarching objective of giving effect to legislative intent while upholding courts’ supervisory role in a rule of law system (see p. 1090).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12866,7 +12866,7 @@ "text": "The reasoning of Gonthier J. in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, further reflected this understanding that it is the privative clause that signals when deference is owed and that demarcates the area of relative expertise. Gonthier J. made clear that: Where the legislator has clearly stated that the decision of an administrative tribunal is final and binding, courts of original jurisdiction cannot interfere with such decisions unless the tribunal has committed an error which goes to its jurisdiction. . . . Decisions which are so protected are, in that sense, entitled to a non‑discretionary form of deference because the legislator intended them to be final and conclusive and, in turn, this intention arises out of the desire to leave the resolution of some issues in the hands of a specialized tribunal. [Emphasis added; p. 1744.] Gonthier J.’s statement captured the essential role of the privative clause. Privative clauses indicate the legislature’s intent that administrative decisions made within “the hands of a specialized tribunal” be deemed final and conclusive. It is in these cases that courts must balance their constitutional role to preserve the rule of law with the legislature’s intent to oust the courts’ jurisdiction. Gonthier J.’s reasoning understood expertise as the underlying rationale for enacting the privative clause. Expertise alone was not interpreted as indicating a legislative intent for finality. If the legislature intended to protect expert decision-makers from review, it did so through a privative clause. C. Departure From the Origins of Standard of Review: Expertise as a Stand-Alone Basis for Deference", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12884,7 +12884,7 @@ "text": "However, with Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, there was a departure from the conceptual origin of standard of review I have described. That case involved the judicial review of a tribunal decision that was not protected by a privative clause and in fact was subject to a statutory right of appeal. Relying on the language of “specialization of duties” from Bell Canada, the Court in Pezim imputed relative expertise to the tribunal, including on questions of law, based on its statutory mandates. In Pezim, the Court reviewed the constating statute of the British Columbia Securities Commission and found that “[t]he breadth of the Commission’s expertise and specialisation is reflected in the provisions of the [B.C. Securities Act]” (p. 593). This approach of judicially imputing expertise, even on questions of law, was a departure from earlier jurisprudence that relied on privative clauses as the manifest signal of the legislature’s recognition of relative tribunal expertise.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12902,7 +12902,7 @@ "text": "My colleague Binnie J. writes at para. 26 of his reasons that “Pezim has been cited and applied in numerous cases over the last 15 years.” In light of this, he rejects what he sees as my effort “to roll back the Dunsmuir clock”. With respect, I do not believe that the longevity of Pezim should stand in the way of this Court’s recent attempts to return conceptual clarity to the application of standard of review. The fact that Pezim has been cited in other cases does not preclude this Court from revisiting its reasoning where there are compelling reasons to do so: R. v. Robinson, [1996] 1 S.C.R. 683, at para. 46. In my view, Pezim’s departure from the conceptual basis for standard of review constitutes such a compelling reason. In Dunsmuir, this Court recognized that the time had “arrived for a reassessment” of “the troubling question of the approach to be taken in judicial review of decisions of administrative tribunals” (para. 1). Such reassessment should include a return to the conceptual basis for standard of review.\n\nI do not dispute that reviewing courts, whether in the appellate or judicial review contexts, should show deference to lower courts and administrative decision-makers on questions of fact: see Deschamps J. in concurrence in Dunsmuir at para. 161. The principled bases articulated in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at para. 13, for deference to judicial triers of fact are also relevant in the administrative review context. Just as judicial triers of fact are better situated to make findings of fact at first instance, so too are tribunals, especially in the area of policy making. In cases involving mixed fact and law, where the legal question cannot be extricated from a factual or policy finding, deference should be shown.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12920,7 +12920,7 @@ "text": "However, where a legal question can be extricated from a factual or policy inquiry, it is inappropriate to presume deference where Parliament has not indicated this via a privative clause. The basic rule in the appellate context is that questions of law are to be reviewed on a correctness standard: Housen, at para. 8. The reasons for this are twofold. First, “the principle of universality requires appellate courts to ensure that the same legal rules are applied in similar situations”: Housen, at para. 9. Divergent applications of legal rules undermine the integrity of the rule of law. Dating back to the time of Dicey’s theory of British constitutionalism, almost all rule of law theories include a requirement that each person in the political community be subject to or guided by the same general law: see A. V. Dicey, Introduction to the Study of the Law of the Constitution (10th ed. 1959), at p. 193; L. L. Fuller, The Morality of Law (rev. ed. 1969), at pp. 81-91 (advocating the principle of congruence between official action and declared rule); J. Raz, The Authority of Law: Essays on Law and Morality (1979), at pp. 215-17 (“[s]ince the court’s judgment establishes conclusively what is the law in the case before it, the litigants can be guided by law only if the judges apply the law correctly”). A correctness standard on questions of law is meant, in part, to ensure this universality. Second, appellate and reviewing courts have greater law-making expertise relative to trial judges and administrative decision-makers.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12938,7 +12938,7 @@ "text": "As this Court emphasized in Housen: [W]hile the primary role of trial courts is to resolve individual disputes based on the facts before them and settled law, the primary role of appellate courts is to delineate and refine legal rules and ensure their universal application. In order to fulfill the above functions, appellate courts require a broad scope of review with respect to matters of law. [para. 9]\n\nIn the administrative context, unlike the appellate context, the legislature may decide that an administrative decision-maker has superior expertise relative to a reviewing court, including on legal questions. It signals this recognition by enacting a strong privative clause. It is in these cases that the court must undertake a standard of review analysis to determine the appropriate level of deference that is owed to the tribunal. It is not for the court to impute tribunal expertise on legal questions, absent a privative clause and, in doing so, assume the role of the legislature to determine when deference is or is not owed.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12956,7 +12956,7 @@ "text": "The distinction between the judicial and legislative roles was further blurred when the privative clause was incorporated into the pragmatic and functional approach in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982. Pushpanathan set out the four relevant factors for the standard of review analysis: privative clause, expertise, purpose of the act as a whole and of the provision in particular, and the nature of the problem. Rather than being viewed as the express manifestation of legislative intent regarding deference, the privative clause was now treated simply as one of several factors in the calibration of deference (standard of review). As Professor Macklin notes, “[i]f the privative clause was an exercise in communicating legislative intent about the role of the courts, suffice to say that the message was, if not lost, then at least reformulated in translation” (p. 225). D. Legislative Intent\n\nIn my opinion, recognizing expertise as a free-standing basis for deference on questions that reviewing courts are normally considered to be expert on (law, jurisdiction, fraud, natural justice, etc.) departs from the search for legislative intent that governs this area. As Dunsmuir reaffirmed, the rationale behind the common law standard of review analysis is to give effect to legislative intent (Bastarache and LeBel JJ., at para. 30): see also Pushpanathan, at para. 26 (“[t]he central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed”); C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539, at para. 149 (standard of review as “seeking the polar star of legislative intent”).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12974,7 +12974,7 @@ "text": "Where the recognition of relative expertise was grounded in the privative clause, the legislature’s intent was clear. Departures from that conceptual basis have led courts to undertake what are often artificial judicial determinations of relative expertise. It seems quite arbitrary, for example, that courts may look at the nature of a tribunal as defined by its enabling statute, but not always conduct a full review of its actual expertise. Should a reviewing court be required to consider the qualifications of administrative decision-makers on questions that courts are normally considered to have superior expertise? For example, should it matter whether or not decision-makers have legal training? In the specific context of statutory interpretation, should the reviewing court scrutinize whether or not the tribunal regularly reviews and interprets particular provisions in its home statute such that it possesses relative expertise with respect to such provisions? See L. Sossin, “Empty Ritual, Mechanical Exercise or the Discipline of Deference? Revisiting the Standard of Review in Administrative Law” (2003), 27 Advocates’ Q. 478, at p. 491 (for a discussion of the judicial determination of expertise).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -12992,7 +12992,7 @@ "text": "Far from subscribing to the view that courts should be reviewing the actual expertise of administrative decision-makers, it is my position that this is the function of the legislature. In my view, the discordance between imputed versus actual expertise is simply one manifestation of the larger conceptual unhinging of tribunal expertise from the privative clause. The legislatures that create administrative decision-makers are better able to consider the relative qualifications, specialization and day-to-day workings of tribunals, boards and other decision-makers which they themselves have constituted. Where the legislature believes that an administrative decision-maker possesses superior expertise on questions that are normally within the traditional bailiwick of courts (law, jurisdiction, fraud, natural justice, etc.), it can express this by enacting a privative clause.\n\nIn my respectful view, the majority’s common law standard of review approach seeks two polar stars — express legislative intent and judicially determined expertise — that may or may not align. While there was some attempt by the majority in Dunsmuir to reconnect these inquiries, the move has been incomplete. Professor David Mullan notes that “expertise is no longer described as the single most important factor” in Dunsmuir and the privative clause is seen as a “strong indication” of a requirement of deference: “Dunsmuir v. New Brunswick, Standard of Review and Procedural Fairness for Public Servants: Let’s Try Again!” (2008), 21 C.J.A.L.P. 117, at pp. 125-26. In my view, it is time for the courts to acknowledge that privative clauses and tribunal expertise are two sides of the same coin. E. Recognizing the Limitation of Common Law Standard of Review Analysis", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13010,7 +13010,7 @@ "text": "Standard of review has dominated so much of administrative law jurisprudence and academic writing to date that one might hope it would, by now, provide a cogent and predictable analysis of when courts should adopt a deferential approach to an administrative decision. Dunsmuir demonstrates that this is still not the case. In Dunsmuir, six judges of this Court said that the standard of review applicable to the adjudicator’s legal determination was reasonableness. Three judges found that the standard was correctness. Each group focused on different aspects of the adjudicator’s decision-making process. The majority gave weight to the presence of a strong privative clause, that the adjudicator was imputed to have expertise in interpreting his home statute, that the purpose of the legislation was the timely and binding settlement of disputes, and that the legal question was not outside the specialized expertise of the adjudicator. The minority focused on the relationship between the common law rules relating to dismissal and those under the Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25. Because their starting point was the common law, over which the adjudicator was not imputed to have expertise, the minority was of the view that the correctness standard applied.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13028,7 +13028,7 @@ "text": "What this demonstrates is that the common law standard of review analysis continues to provide little certainty about which standard will apply in a particular case. How a court will weigh and balance the four standard of review factors remains difficult to predict and therefore more costly to litigate. In my view, it must be recognized that the common law standard of review analysis does not provide for a panacea of rigorous and objective decision making regarding the intensity with which courts should review tribunal decisions. In attempting to reconcile the court’s constitutional role in the face of a strong privative clause, it may be the best that we have at this point. But its application outside the privative clause context is, in my view, of highly questionable efficacy. III. Judicial Recognition of Legislated Standards of Review A. Giving Effect to Legislative Intent\n\nThis Court has considered legislative language similar to that in s. 18.1(4) in previous cases and has held that a common law standard of review analysis is not necessary where the legislature has provided for standards of review. This Court held in R. v. Owen, 2003 SCC 33, [2003] 1 S.C.R. 779, that legislative rules specifying standards of review must be given effect by courts, subject to constitutional limits.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13046,7 +13046,7 @@ "text": "The majority now attempts to qualify that holding in Owen. In my respectful view, that is ignoring the obvious. The majority insists that although not stated, the “common law of judicial review” was still in play in Owen. Binnie J. writes that “even in the context of a precisely targeted proceeding related to a named adjudicative board, the standard of review was evaluated by reference to the common law of judicial review” (para. 31). In my respectful opinion, to say (or imply) that a Dunsmuir standard of review analysis applies even where the legislature has articulated the applicable standard of review directly contradicts Owen.\n\nThe majority nevertheless implies that even if the Dunsmuir standard of review analysis did not apply in Owen, this was only because of the specificity of s. 672.38 of the Criminal Code , R.S.C. 1985, c. C-46 (see para. 29). That section sets out the standard of review to be applied on judicial review of decisions from Review Boards regarding the liberty of persons found not criminally responsible. The majority contrasts this with s. 18.1 of the FCA , stating that “[r]esort to the general law of judicial review is all the more essential in the case of a provision like s. 18.1 of the [FCA ] which, unlike s. 672 of the Criminal Code , is not limited to particular issues before a particular adjudicative tribunal” (para. 33). Thus, even if one rejects the view that a common law standard of review analysis was present in Owen, the majority still says that the generality of s. 18.1 of the FCA makes it applicable in the present case.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13064,7 +13064,7 @@ "text": "The problem with this reasoning is that such qualification would seriously undermine the legislature’s ability to introduce greater certainty and predictability into the standard of review process. Drawn to its logical conclusion, in order to displace the Dunsmuir standard of review analysis, the majority’s approach would require legislatures to enact standard of review legislation with respect to every single administrative tribunal or decision-maker and perhaps in relation to every type of decision they make. With respect, this amounts to a serious overreaching of this Court’s role. It fails to respect the legislature’s prerogative to articulate, within constitutional limits, what standard of review should apply to decision-makers that are wholly the products of legislation.\n\nIn discussing British Columbia’s Administrative Tribunals Act, S.B.C. 2004, c. 45 (“B.C. ATA”), Binnie J. notes that “most if not all judicial review statutes are drafted against the background of the common law of judicial review” (para. 19). While I agree with this observation, I disagree with him as to the conclusions that should flow from it. The majority views the common law background as providing an opening for the continued relevance of a common law standard of review analysis. In reference to s. 58(2)(a) of the B.C. ATA, Binnie J. writes: Despite Dunsmuir, “patent unreasonableness” will live on in British Columbia, but the content of the expression, and the precise degree of deference it commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law. [Underlining added; para. 19.]", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13082,7 +13082,7 @@ "text": "The majority would allow for recourse to the common law on several fronts. First, Binnie J. states that the common law jurisprudence on the “content” of “patently unreasonable” will be relevant. I agree that the common law will be a necessary interpretive tool where common law expressions are employed by the legislator and are not adequately defined: see R. Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), at pp. 434-36; R. v. Holmes, [1988] 1 S.C.R. 914; Waldick v. Malcolm, [1991] 2 S.C.R. 456.\n\nHowever, the majority would also allow for recourse on a second front. Binnie J. says that “the precise degree of deference [patently unreasonable] commands in the diverse circumstances of a large provincial administration, will necessarily continue to be calibrated according to general principles of administrative law” (para. 19). It is unclear exactly which principles of administrative law are being referred to. If the reference to general principles of administrative law means there is some sort of spectrum along which patent unreasonableness is to be calibrated, that would be at odds with the B.C. legislature’s codification of discrete standards of review.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13100,7 +13100,7 @@ "text": "With the ATA, the B.C. legislature expressly codified the standards of review. However, in order for legislation to be exhaustive on a particular question, legislatures are not required to expressly oust the common law by statute. In Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298, this Court considered whether recourse to the common law duty of fair representation was appropriate where the legislature had created a statutory duty. L’Heureux‑Dubé J., writing for a unanimous Court, emphasized that because the content of the statutory remedy was “identical to the duty at common law”, the “common law duty is therefore not in any sense additive; it is merely duplicative” (p. 1316). The Court went on to hold that the common law duty of fair representation is neither “necessary [nor] appropriate” in circumstances where the statutory duty applies. Parliament has codified the common law duty and provided a new and superior method of remedying a breach. It is therefore reasonable to conclude that while the legislation does not expressly oust the common law duty of fair representation, it does however effect this end by necessary implication . . . . [Emphasis in original; p. 1319.] Thus, while recourse to the common law is appropriate where Parliament has employed common law terms or principles without sufficiently defining them, it is not appropriate where the legislative scheme or provisions expressly or implicitly ousts the relevant common law analysis as is the case with s. 18.1(4) of the FCA . B. The Majority’s Concern With the Rigidity of Legislated Standards Is Misplaced", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13118,7 +13118,7 @@ "text": "The majority expresses concern with the rigidity of general legislative schemes in the judicial review context. With respect to the B.C. ATA, Binnie J. writes of the need for a common law analysis that would account for the “diverse circumstances of a large provincial administration” (para. 19). In the federal context, he writes: “It cannot have been Parliament’s intent to create . . . a single, rigid Procrustean standard of decontextualized review . . .” (para. 28). By focussing on the diversity of decision-makers covered by the FCA and the B.C. ATA, the majority’s reasons make prescribed standards appear overly rigid, even arbitrary.\n\nWith respect, the image of the Procrustean bed is misplaced in the judicial review context. The invocation of the Procrustean image with respect to legislated rules creates the impression that the contrasting common law standard of review is operating in a fluid, fully contextualized paradigm. This is not the case. This is not an area where Parliament is imposing rigid conformity against the backdrop of a panoply of common law standards. The potential flexibility of a contextual common law analysis is already limited in the post-Dunsmuir world of two standards. Regardless of what type of decision-maker is involved, whether a Cabinet minister or an entry‑level fonctionnaire (para. 28), the Dunsmuir analysis can only lead to one of two possible outcomes: reasonableness or correctness. And, as the present majority makes clear, these are single standards, not moving points along a spectrum (para. 59).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13136,7 +13136,7 @@ "text": "Moreover, the majority’s concerns regarding legislative rigidity are only realized if one accepts that the focus of the analysis should or must be on the type of administrative decision-maker. The majority’s argument is that it cannot have been intended for a range of decision-makers to be subject to the same standards of review. A review of the FCA and the B.C. ATA makes clear, however, that the respective legislatures believed the focus should be on the nature of the question under review (e.g., fact, law, etc.), rather than the nature of the decision-maker. So there is a diversity in these schemes. It just operates according to the type of question being reviewed.\n\nEven given this legislative focus on the type of question under review, it is still not the case that all administrative decision-makers are subject to the same standards of review. Where a decision-maker’s enabling statute purports to preclude judicial review on some or all questions through a privative clause, deference will apply and a Dunsmuir standard of review analysis will be conducted. This is precisely how Parliament has legislated in the FCA context when it intends for greater deference to be shown to certain decision-makers.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13154,7 +13154,7 @@ "text": "The Canada Labour Code , R.S.C. 1985, c. L-2 , for example, includes a strong privative clause protecting the Canadian Industrial Relations Board from judicial review under the FCA on questions of law and fact. Section 22(1) states: 22. (1) Subject to this Part, every order or decision of the Board is final and shall not 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. 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 FCA . 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.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13172,7 +13172,7 @@ "text": "In contrast, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 — the underlying legislation in the present case — does not contain this type of privative clause. Section 162(1) only provides that “[e]ach 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.” Contrary to the implication of the majority reasons, I think it is plain that this privative clause is intended only to differentiate between different levels and tribunals within the immigration regime and provide each with exclusive jurisdiction to hear legal and factual questions. It is not a privative clause that seeks to restrict or preclude judicial review.\n\nThese examples indicate that Parliament has not been unmindful of the issue of standard of review in s. 18.1(4). Where it intends that a tribunal decision reviewed under s. 18.1 be shown deference, Parliament expressly indicates this either in s. 18.1(4) itself, as it has in para. (d) with respect to facts, or in the underlying legislation such as the Canada Labour Code . Where it does not, the courts should undertake their review according to the standards of correctness.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13190,7 +13190,7 @@ "text": "I would note that the B.C. legislature has also turned its mind to these concerns. The B.C. ATA provides for more deferential standards of review where the underlying statute contains a privative clause. By imposing different standards of review depending on whether or not the administrative decision is protected by a privative clause, the legislature differentiates between those expert decisions it wished to protect and those it did not (ss. 58 and 59). The Honourable Geoff Plant indicated this when introducing the B.C. ATA on second reading: For tribunals with specialized expertise, like the Farm Industry Review Board and the Employment Standards Tribunal, this bill generally provides that a court must defer to a tribunal’s decision unless the decision is patently unreasonable or the tribunal has acted unfairly. For other tribunals — including, for example, the mental health review panels — the bill provides that with limited exceptions, a court must adopt a standard of correctness in reviewing the tribunal’s decisions. (Debates of the Legislative Assembly, 5th Sess., 37th Parl., May 18, 2004, at p. 11193)", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13208,7 +13208,7 @@ "text": "The record of the proceedings of the B.C. legislature also makes clear the legislature’s intent to codify standards of review that would oust a duplicative common law standard of review analysis. The policy rationale for this move was clear. The legislation was aimed at refocussing judicial review litigation on the merits of the case, rather than on the convoluted process of determining and applying the standard of review. The question of what the standard of review should be on a case‑by‑case basis is often interpreted by the courts as a search for legislative intent. . . . Accordingly, searching for that intent tends to be a time‑consuming, expensive and sometimes disruptive exercise. . . . . . . The provisions in this bill that codify the standards of review will shift the focus from what has been largely a scholarly debate about fine points of law to matters of greater immediate concern to the parties in tribunal proceedings. [Emphasis added.] (Debates of the Legislative Assembly, at p. 11193)\n\nIt would be troubling, I believe, to the B.C. legislature to think that, despite its effort to codify standard of review and shift the focus of judicial review to the merits of the case, this Court would re-impose a duplicative Dunsmuir-type analysis in cases arising under the B.C. ATA. IV. Statutory Interpretation of the Federal Courts Act A. Section 18.1(4)\n\nSection 18.1(4) appears at para. 71 above. On my reading, where Parliament intended a deferential standard of review in s. 18.1(4), it used clear and unambiguous language. The necessary implication is that where Parliament did not provide for deferential review, it intended the reviewing court to apply a correctness standard as it does in the regular appellate context.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13226,7 +13226,7 @@ "text": "In my opinion, it is useful to analyse s. 18.1(4) by first examining para. (d), which provides for judicial review where the federal board, commission or other tribunal (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; In this paragraph, Parliament has expressly instructed courts to show significant deference to the original decision-maker. The words “in a perverse or capricious manner or without regard for the material before it” are clear and unambiguous. They indicate that on questions of fact, courts are only to interfere in the most egregious cases of erroneous fact finding.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13244,7 +13244,7 @@ "text": "Binnie J. also finds that “it is clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference” (para. 46). It would seem that in recognizing that the legislature intended a high degree of deference, one would conclude that this provision speaks for itself and ousts a common law standard of review analysis. Yet, Binnie J. still suggests that the provision is merely complementary of the common law, rather than dispositive of the standard of review issue. He writes that s. 18.1(4)(d) “provides legislative precision to the reasonableness standard of review of factual issues” and is “quite consistent with Dunsmuir” (para. 46). By superimposing Dunsmuir, the majority signals that factual decisions are to be reviewed on a reasonableness standard. The question then is whether reasonableness implies the same level of deference as “capricious” and “perverse”. Arguably, a reasonableness review might be less deferential than that intended by the words Parliament used. Regardless of whether that is true or not, there is no justification for imposing a duplicative common law analysis where the statute expressly provides for the standard of review: see Gendron.\n\nBy contrast with para. (d), there is no suggestion that courts should defer in reviewing a question that raises any of the other criteria in s. 18.1(4). Parliament recognized that with respect to factual determinations, a federal board, commission or other tribunal is better situated than a reviewing court. With respect to questions of law, jurisdiction, natural justice, fraud or perjured evidence, the legislation deems courts to have greater expertise than administrative decision-makers.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13262,7 +13262,7 @@ "text": "There is no suggestion in the FCA that reviewing courts should defer on questions of law. Section 18.1(4)(c) provides for review where the federal board, commission or other tribunal (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; I can see no meaningful difference between the terms “the decision is based on a wrong decision on a question of law” which, in Owen, was considered to be sufficient by this Court to determine that a correctness standard of review applied, and “erred in law in making a decision or an order, whether or not the error appears on the face of the record” in s. 18.1(4)(c). Indeed, in Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, a unanimous Court thought that the words of s. 18.1(4) were sufficiently clear that “[u]nder these provisions, questions of law are reviewable on a standard of correctness” (para. 37). Mugesera, like this case, was a judicial review of a decision of the IAD.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13280,7 +13280,7 @@ "text": "The majority now attempts to qualify Mugesera by writing that “[e]rrors of law are generally governed by a correctness standard” (para. 44 (emphasis added)). With respect, Mugesera did not qualify its application of the correctness standard of review in interpreting s. 18.1(4)(c). Paragraph 37 of Mugesera states: Applications for judicial review of administrative decisions rendered pursuant to the Immigration Act are subject to s. 18.1 of the Federal Court Act . Paragraphs (c) and (d) of s. 18.1(4), in particular, allow the Court to grant relief if the federal commission erred in law or based its decision on an erroneous finding of fact. Under these provisions, questions of law are reviewable on a standard of correctness. Moreover, contrary to what the present majority implies, the Court in Mugesera did not limit the application of the correctness standard to “the general questions of international law and criminal law at issue in that case” (para. 44 of majority). It is clear that as a matter of statutory interpretation, the Court understood s. 18.1(4)(c) as requiring a correctness review on questions of law. The Court saw no need to impose the common law over what the statute itself dictated.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13298,7 +13298,7 @@ "text": "The majority nevertheless insists that “para. (c) provides a ground of intervention, but the common law will stay the hand of the judge(s) in certain cases if the interpretation is by an expert adjudicator interpreting his or her home statute or a closely related statute” (para. 44 (emphasis in original)). With respect, there is no authority for this in the legislation. The majority finds their opening in the remedial discretion of s. 18.1(4). Binnie J. writes: “This nuance does not appear on the face of para. (c), but it is the common law principle on which the discretion provided in s. 18.1(4) is to be exercised” (para. 44). As I will explain, the remedial discretion in s. 18.1(4) goes to the question of withholding relief, not the review itself. The bases upon which the remedial discretion is to be exercised are wholly distinct from the common law of standard of review analysis.\n\nParagraphs (a), (b) and (e) of s. 18.1(4) provide for relief where a federal board, commission or other tribunal (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; . . . (e) acted, or failed to act, by reason of fraud or perjured evidence; There is no indication in any of these provisions that the legislature intended for the reviewing court to show any deference to administrative decision-makers in determining questions of jurisdiction, natural justice, procedural fairness and fraud or perjured evidence.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13316,7 +13316,7 @@ "text": "Section 18.1(4)(f) contemplates judicial intervention where the federal board, commission or other tribunal (f) acted in any other way that was contrary to law. The majority writes that s. 18.1(4)(f) “necessarily includes ‘law’ outside the [FCA ]” (para. 48) and therefore demonstrates that “s. 18.1(4) is not intended to operate as a self-contained code, but is intended by Parliament to be interpreted and applied against the backdrop of the common law, including those elements most recently expounded in Dunsmuir” (para. 48). The majority relies on the statement by the authors of Federal Courts Practice 2009 (2008), B. J. Saunders et al., that “[s]ection 18.1(4)(f) ensures that the Court will not be hindered in developing new grounds for review” (para. 49 (emphasis added by Binnie J.)).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13334,7 +13334,7 @@ "text": "It is not in dispute that s. 18.1(4) is not intended to operate as a self-contained code. In judicial review of any administrative decision where a legal error is alleged, the court is required to consider whether the decision-maker was in breach of any statutory provision or common law rule that might be relevant. In this regard, I agree that s. 18.1(4)(f) provides for potentially expanded grounds of review. However, that is not the issue in this case. The issue in this case is whether Parliament has legislated exhaustively on the standard of review, so as to oust the Dunsmuir standard of review analysis. Binnie J.’s reliance on Saunders et al.’s discussion of the “grounds of review” under s. 18.1(4) does not address whether the section also provides for standards of review. This is troubling, given that those same commentators find that s. 18.1(4) does provide for standards of review on questions of fact and law. At p. 145 of their text under the title “Grounds for Review — Standard of Review — Generally” in commenting on Mugesera, they write: Under section 18.1(4) (c) and (d) of the Federal Courts Act , questions of law are reviewable on a standard of correctness. On questions of fact, the reviewing court can intervene under section 18.1(4)(d) only if it considers that the tribunal “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”.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13352,7 +13352,7 @@ "text": "All that s. 18.1(4)(f) provides for is review of legal errors committed by a federal board, commission or other tribunal other than those “in making a decision or an order”, which are already captured under s. 18.1(4)(c): see Morneault v. Canada (Attorney General), [2001] 1 F.C. 30 (C.A.), at para. 44 (“the intent of the paragraph appears to have been to afford a ground that was not otherwise specifically mentioned in subsection 18.1(4)”). A tribunal’s refusal to make a decision or an order, for example, would not come under para. (c). The reference to “acted in any other way that was contrary to law” refers, then, to legal errors that are not captured by s. 18.1(4)(c). It does not provide an opening for a Dunsmuir standard of review analysis. With respect, the majority’s view of s. 18.1(4) ignores the obvious interpretation in search of something that is not there. B. Section 18 and the Origins of the Federal Courts Act\n\nThe majority is of the view that when s. 18.1 was added to the FCA , it “did not have the effect of excluding the common law” (para. 34). It appears that this proposition is intended to act as a platform for the applicability of the common law standard of review analysis. With respect, it is overly broad to suggest that all elements of the common law continued to apply to s. 18.1(4) simply because there were some gaps — for example, criteria in exercising the discretion to withhold relief — which the common law continued to fill. For the reasons I have explained, the FCA occupies the area of standard of review and therefore ousts the application of the common law on this question.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13370,7 +13370,7 @@ "text": "The genesis of the FCA and its amendments is not in dispute. Section 18 was enacted to transfer jurisdiction from the provincial superior courts to the federal courts for judicial review of federal tribunals, subject to provincial courts retaining a residual jurisdiction to determine the constitutionality and applicability of legislation. Section 18, which refers to the prerogative writs, survives, but no application for judicial review can be made under it. Subsection (3) provides: The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1. Section 18.1 contains the statutory process under which judicial review may be applied for and under which the court exercises its jurisdiction.\n\nThe 1990 amendments were intended to clarify pre-existing procedural confusion about whether the trial or appeal divisions had jurisdiction with regard to particular applications for judicial review. The amendments also aimed to simplify the procedure for obtaining a remedy by requiring that it be sought by way of application for judicial review, rather than by way of statement of claim or originating notice of motion as had been the prior practice: D. Sgayias et al., Federal Court Practice 1998 (1997), at pp. 69-70. As reform legislation, the amendments did not concern the standard of review. C. The Implications of Section 18.1(4) Remedial Discretion", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13388,7 +13388,7 @@ "text": "I agree with Binnie J.’s bilingual analysis and conclusion that, “notwithstanding the bilingual issue in the text, s. 18.1(4) should be interpreted so as to preserve to the Federal Court a discretion to grant or withhold relief” (para. 40). The pertinent question is what should form the basis for the exercise of that judicial discretion. Relief on judicial review is equitable. The discretion in s. 18.1(4) recognizes that it may be inappropriate to grant equitable relief in some cases. This remedial discretion allows a reviewing judge to withhold relief in certain cases. It does not concern the review itself, however.\n\nThe majority says that the FCA does not “indicate in what circumstances . . . relief may properly be withheld” (para. 42). It is true that the legislation does not provide for criteria according to which reviewing courts should exercise their discretion to withhold relief. In the context of this specific gap, I agree with the majority that “resort will have to be had to the common law” (para. 42). The pertinent question is which part of the common law is relevant to the withholding of relief by the court on judicial review.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13406,7 +13406,7 @@ "text": "Binnie J. attempts to ground the court’s remedial discretion to withhold relief in general judicial review principles. He states at para. 36 that the court’s exercise of the s. 18.1(4) discretion “will depend on the court’s appreciation of the respective roles of the courts and the administration as well as the ‘circumstances of each case’: see Harelkin v. University of Regina, [1979] 2 S.C.R. 561, at p. 575.” He cites Brown and Evans’ observation that “whenever the court exercises its discretion to deny relief, balance of convenience considerations are involved” (para. 36); D. J. M. Brown and J. M. Evans, Judicial Review of Administrative Action in Canada (loose-leaf), at p. 3-99. While “the discretion must be exercised judicially”, Binnie J. finds that “the general principles of judicial review dealt with in Dunsmuir provide elements of the appropriate judicial basis for its exercise” (para. 36).\n\nBy linking remedial discretion to Dunsmuir “general principles of judicial review”, Binnie J. conflates standard of review (deference) with the granting of relief. In doing so, he effectively reads in an opening for recourse to the common law standard of review analysis. He relies on the specific gap regarding the discretion to grant relief to impute a wider gap regarding standard of review.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13424,7 +13424,7 @@ "text": "With respect, this is not the nature of the discretion under s. 18.1(4). The traditional common law discretion to refuse relief on judicial review concerns the parties’ conduct, any undue delay and the existence of alternative remedies: Immeubles Port Louis Ltée v. Lafontaine (Village), [1991] 1 S.C.R. 326, at p. 364. As Harelkin affirmed, at p. 575, courts may exercise their discretion to refuse relief to applicants “if they have been guilty of unreasonable delay or misconduct or if an adequate alternative remedy exists, notwithstanding that they have proved a usurpation of jurisdiction by the inferior tribunal or an omission to perform a public duty”. As in the case of interlocutory injunctions, courts exercising discretion to grant relief on judicial review will take into account the public interest, any disproportionate impact on the parties and the interests of third parties. This is the type of “balance of convenience” analysis to which Brown and Evans were referring.\n\nThus, the discretion contained in s. 18.1(4) speaks to the withholding of relief in appropriate cases; it does not engage the question of standard of review. Reliance upon it by the majority to support the view that it opens the door to the Dunsmuir standard of review analysis is, with respect, misplaced. In my view, the Dunsmuir standard of review should be confined to cases in which there is a strong privative clause. Excepting such cases, it does not apply to s. 18.1(4) of the FCA . V. Decision in This Case", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13442,7 +13442,7 @@ "text": "In determining whether the respondent was eligible for the special relief available under s. 67(1) (c) of the Immigration and Refugee Protection Act , the IAD acknowledged that its discretion should be exercised with consideration for the criteria set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL) (endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84). The majority of the IAD expressly referred to the Ribic factors and, in my view, had regard to those it considered relevant in exercising its discretion. The actual application of the Ribic factors to the case before it and its exercise of discretion is fact-based. I do not find that the factual findings of the IAD were perverse or capricious or were made without regard to the evidence. I would allow the appeal. The following are the reasons delivered by\n\nDeschamps J. — I agree with Rothstein J. that since s. 18.1(4) of the Federal Courts Act , R.S.C. 1985, c. F-7 , sets legislated standards of review, those standards oust the common law. Consequently, I agree with Parts III, IV and V of his reasons and would also allow the appeal. The following are the reasons delivered by Fish J. (dissenting) — I\n\nThis appeal raises two issues. The first concerns the standard of review with respect to decisions of the Immigration Appeal Division (“IAD”). In that regard, I agree with Justice Binnie that the standard of review is “reasonableness”.\n\nThe second issue is whether the majority decision of the IAD in this case survives judicial scrutiny under that standard. Unlike Justice Binnie, and with the greatest of respect, I have concluded that it does not.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13460,7 +13460,7 @@ "text": "Essentially, I find that the decision of the IAD rests on what the Court of Appeal has aptly described as a “fixation” that collides with the overwhelming weight of the uncontradicted evidence in the record before it. I agree with the majority below that the decision, for this reason, cannot stand.\n\nAccordingly, I would dismiss the appeal. II\n\nIn 2000, when he was 18 years old, Sukhvir Singh Khosa caused the death of Irene Thorpe by driving recklessly at more than twice the speed limit, losing control of his automobile and running it off the roadway. He had by then been living in Canada for four years. When his appeal to the IAD was decided in 2004, he was 22 and married. Four more years have elapsed since then.\n\nTo order Mr. Khosa’s removal would separate him from his wife and immediate family. It would return him to a country he has visited only once since emigrating at the age of 14 and where he appears to have few relatives.\n\nThe IAD’s task in this case is to look to “all the circumstances of the case” in order to determine whether “sufficient humanitarian and compassionate considerations” existed to warrant relief from a removal order: Immigration and Refugee Protection Act , S.C. 2001, c. 27, s. 67(1) (c). The IAD is bound in performing that function to consider the various factors set out in Ribic v. Canada (Minister of Employment and Immigration), [1985] I.A.B.D. No. 4 (QL), and endorsed by this Court in Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3, [2002] 1 S.C.R. 84, at para. 90. The IAD in this case placed the greatest emphasis on the factors of remorse, rehabilitation, and likelihood of reoffence.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13478,7 +13478,7 @@ "text": "With respect to these factors, the record before the IAD consisted essentially of the following uncontested and uncontradicted evidence: · The sentencing judge found that “by his actions immediately after learning of Ms. Thorpe’s death and since the accident . . . he has expressed remorse” (R. v. Khosa, 2003 BCSC 221, [2003] B.C.J. No. 280 (QL), at para. 56). · Mr. Khosa took responsibility for his crime early, expressing a desire to attend the funeral of the woman he had killed and offering — before any arraignment or preliminary inquiry — to plead guilty to dangerous driving causing death. · The sentencing judge found that “[i]n the more than two years that have passed since the accident, Mr. Khosa has not left the house except to go to work, to school, or the Sikh temple. He normally does not drink. He does not take drugs. He has no criminal record. He has no driving record. He has complied with all of his bail conditions and is not likely to re-offend” (para. 55 (emphasis added)). · Mr. Khosa had not driven a car since the accident, even though he was permitted to do so for some months thereafter. · Mr. Khosa’s probation officer concluded from close and extensive contact with Mr. Khosa that he “appears to be making a sincere effort to maintain a stable and responsible life style in which he is a contributing member of the community”. The probation officer also reported that he has “demonstrated a very positive attitude towards community supervision [and] willingly conforms to the expectations, requirements, and restrictions of the Conditional Sentence”. With respect to his character, the probation officer was of the view that Mr. Khosa “presents as a pro‑social young man who values work, family, community and religion” (Appellant’s Record, at p. 355). · Mr.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13496,7 +13496,7 @@ "text": "Khosa had no previous criminal or driving convictions whatever. · Mr. Khosa had complied with all provisions of his conditional sentence. · Several employers wrote letters describing Mr. Khosa as conscientious and reliable.\n\nDespite all of this evidence indicating that Mr. Khosa was extremely unlikely to reoffend and had taken responsibility for his actions, the majority at the IAD seized upon one consideration: Mr. Khosa’s denial that he was “street-racing” at the time the accident occurred. Apart from a brief mention of Mr. Khosa’s “show of relative remorse at [the] hearing” ([2004] I.A.D.D. No. 1268 (QL), at para. 15), and a passing allusion to the judgments of the criminal courts to his culpability (para. 14), Mr. Khosa’s denial was the only consideration that the IAD majority considered with respect to these issues. Manifestly, this solitary fact was the decisive element — if not the sole basis — upon which the majority of the IAD denied Mr. Khosa’s basis for all humanitarian and compassionate relief.\n\nSo much cannot reasonably be made out of so little. III\n\nWhile Mr. Khosa’s denial of street racing may well evidence some “lack of insight” into his own conduct, it cannot reasonably be said to contradict — still less to outweigh, on a balance of probabilities — all of the evidence in his favour on the issues of remorse, rehabilitation and likelihood of reoffence.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13514,7 +13514,7 @@ "text": "The IAD’s cursory treatment of the sentencing judge’s findings on remorse and the risk of recidivism are particularly troubling. While findings of the criminal courts are not necessarily binding upon an administrative tribunal with a distinct statutory purpose and a different evidentiary record, it was incumbent upon the IAD to consider those findings and to explain the basis of its disagreement with the decision of the sentencing judge. The majority decision at the IAD mentions only in passing the favourable findings of the criminal courts and does not explain at all its disagreement with them.\n\nMoreover, Mr. Khosa’s denial of street racing is, at best, of little probative significance in determining his remorse, rehabilitation and likelihood of reoffence. In light, particularly, of the extensive, uncontradicted and unexplained evidence to the contrary, Mr. Khosa’s denial of street racing cannot reasonably support the inference drawn from it by the majority in the IAD.\n\nIt is also important to note that street racing was not a necessary element of Mr. Khosa’s crime of criminal negligence causing death (R. v. Khosa, 2003 BCCA 644, 190 B.C.A.C. 23, at para. 85). It appears that Mr. Khosa’s refusal to accept his guilty verdict on this charge — in contrast with his willingness to plead guilty to the less serious charge of dangerous driving causing death — is due solely to his mistaken impression that the former requires a finding that he was racing (Appellant’s Record, at p. 145). This is therefore not a case where a person in deportation proceedings maintains his innocence, as suggested by the majority of the IAD (at para. 14), but rather a case where the immigrant simply disputes an ancillary finding of the criminal court.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13532,7 +13532,7 @@ "text": "Whatever the correct interpretation of Mr. Khosa’s denial that he was street-racing, it is clear that the majority at the IAD had “some kind of fixation” — to again borrow the phrase of the majority below — with this piece of evidence, and based its refusal to grant humanitarian and compassionate relief largely on this single fact.\n\nThe majority at the IAD made repeated reference to the denial. Toward the end of its decision, it stated that in light of Mr. Khosa’s “failure . . . to acknowledge his conduct and accept responsibility for . . . street-racing . . ., there is insufficient evidence upon which I can make a determination that [Mr. Khosa] does not represent a present risk to the public” (para. 23 (emphasis added)). I find that this conclusion is not only incorrect, but unreasonable. There was ample evidence suggesting that he posed no risk. The majority decision of the IAD simply disregarded virtually all of that evidence.\n\nLater, in justifying its decision to deny all relief rather than order a stay of removal, the majority wrote that Mr. Khosa’s “failure to acknowledge or take responsibility for his specific reckless conduct does not suggest that any purpose would be served by staying the present removal order” (para. 24). Here, again, the decision of the IAD majority transforms a limited, specific and ancillary denial into a general failure to take responsibility.\n\nThe majority’s inordinate focus on racing and its failure to consider contrary evidence do not “fit comfortably with the principles of justification, transparency and intelligibility” that are required in order to withstand reasonableness review (reasons of Binnie J., at para. 59).", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13550,7 +13550,7 @@ "text": "With respect, I thus feel bound to conclude that the IAD was unreasonable in its evaluation of Mr. Khosa’s rehabilitation, remorse and likelihood of reoffence. IV\n\nBecause the IAD’s finding on these specific factors was central to its ultimate decision to deny any and all humanitarian and compassionate relief, the IAD’s determination cannot be sustained.\n\nTo be sure, the majority at the IAD stated that even if it were to have found that Mr. Khosa did not present a risk to the public “in balancing all the relevant factors, I determine the scale does not tip in [Mr. Khosa’s] favour and decline to exercise favourable discretion” (para. 23). This sort of conclusory statement, however, cannot insulate the IAD’s decision from review when the rest of its reasons demonstrate that its decision rests on an unreasonable determination of central importance, as in this case.\n\nI agree that decisions of the IAD are entitled to deference. In my respectful view, however, deference ends where unreasonableness begins. V\n\nFor all these reasons, as stated at the outset, I would dismiss the appeal and affirm the judgment of the Court of Appeal returning this matter to the IAD for reconsideration before a differently constituted panel. Appeal allowed, Fish J. dissenting.", "current_to": "2009-03-06", "last_amended": "", - "history": "Also reported: [2009] 1 SCR 339", + "history": "[2009] 1 SCR 339", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/6901/index.do" }, { @@ -13568,7 +13568,7 @@ "text": "One of the most fundamental responsibilities of a government is to ensure the security of its citizens. This may require it to act on information that it cannot disclose and to detain people who threaten national security. Yet in a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. These two propositions describe a tension that lies at the heart of modern democratic governance. It is a tension that must be resolved in a way that respects the imperatives both of security and of accountable constitutional governance.\n\nIn this case, we are confronted with a statute, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“IRPA ”), that attempts to resolve this tension in the immigration context by allowing the Minister of Citizenship and Immigration (the “Minister”), and the Minister of Public Safety and Emergency Preparedness (collectively “the ministers”) to issue a certificate of inadmissibility leading to the detention of a permanent resident or foreign national deemed to be a threat to national security. The certificate and the detention are both subject to review by a judge, in a process that may deprive the person named in the certificate of some or all of the information on the basis of which the certificate was issued or the detention ordered. The question is whether the solution that Parliament has enacted conforms to the Constitution, and in particular the guarantees in the Canadian Charter of Rights and Freedoms that protect against unjustifiable intrusions on liberty, equality and the freedom from arbitrary detention and from cruel and unusual treatment.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13586,7 +13586,7 @@ "text": "I conclude that the IRPA unjustifiably violates s. 7 of the Charter by allowing the issuance of a certificate of inadmissibility based on secret material without providing for an independent agent at the stage of judicial review to better protect the named person’s interests. I also conclude that some of the time limits in the provisions for continuing detention of a foreign national violate ss. 9 and 10(c) because they are arbitrary. I find that s. 12 has not been shown to be violated since a meaningful detention review process offers relief against the possibility of indefinite detention. Finally, I find that there is no breach of the s. 15 equality right. II. Background\n\nThe provisions of the IRPA at issue in this case, reproduced in the Appendix, are part of Canada’s immigration law. Their purpose is to permit the removal of non-citizens living in Canada — permanent residents and foreign nationals — on various grounds, including connection with terrorist activities. The scheme permits deportation on the basis of confidential information that is not to be disclosed to the person named in the certificate or anyone acting on the person’s behalf or in his or her interest. The scheme was meant to “facilitat[e] the early removal of persons who are inadmissible on serious grounds, including persons posing a threat to the security of Canada” (Clause by Clause Analysis (2001), at p. 72). In reality, however, it may also lead to long periods of incarceration.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13604,7 +13604,7 @@ "text": "The IRPA requires the ministers to sign a certificate declaring that a foreign national or permanent resident is inadmissible to enter or remain in Canada on grounds of security, among others: s. 77. A judge of the Federal Court then reviews the certificate to determine whether it is reasonable: s. 80. If the state so requests, the review is conducted in camera and ex parte. The person named in the certificate has no right to see the material on the basis of which the certificate was issued. Non-sensitive material may be disclosed; sensitive or confidential material must not be disclosed if the government objects. The named person and his or her lawyer cannot see undisclosed material, although the ministers and the reviewing judge may rely on it. At the end of the day, the judge must provide the person with a summary of the case against him or her — a summary that does not disclose material that might compromise national security. If the judge determines that the certificate is reasonable, there is no appeal and no way to have the decision judicially reviewed: s. 80(3).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13622,7 +13622,7 @@ "text": "The consequences of the issuance and confirmation of a certificate of inadmissibility vary, depending on whether the person is a permanent resident of Canada or a foreign national whose right to remain in Canada has not yet been confirmed. Permanent residents who the ministers have reasonable grounds to believe are a danger to national security may be held in detention. In order to detain them, the ministers must issue a warrant stating that the person is a threat to national security or to another person, or is unlikely to appear at a proceeding or for removal. Foreign nationals, meanwhile, must be detained once a certificate is issued: under s. 82(2), the detention is automatic. While the detention of a permanent resident must be reviewed within 48 hours, a foreign national, on the other hand, must apply for review, but may not do so until 120 days after a judge of the Federal Court determines the certificate to be reasonable. In both cases, if the judge finds the certificate to be reasonable, it becomes a removal order. Such an order deprives permanent residents of their status; their detention is then subject to review on the same basis as that of other foreign nationals.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13640,7 +13640,7 @@ "text": "The removal order cannot be appealed and may be immediately enforced, thus eliminating the requirement of holding or continuing an examination or an admissibility hearing: s. 81(b). The detainee, whether a permanent resident or a foreign national, may no longer apply for protection: s. 81(c). Additionally, a refugee or a protected person determined to be inadmissible on any of the grounds for a certificate loses the protection of the principle of non-refoulement under s. 115(1) if, in the opinion of the Minister, the person should not be allowed to remain in Canada on the basis of the nature and severity of acts committed or of danger to the security of Canada: s. 115(2). This means that he or she may, at least in theory, be deported to torture.\n\nA permanent resident detained under a certificate is entitled to a review of his or her detention every six months. Under s. 83(3), a judge must order the detention of a permanent resident to be continued if the judge is satisfied that the person continues to pose a danger to security or to the safety of another, or is unlikely to appear at a proceeding or for removal.\n\nThe detention of foreign nationals, on the other hand, is mandatory. If a foreign national has not been removed within 120 days of the certificate being found reasonable by a judge, however, the judge may order the person released on appropriate conditions if “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Even if released, the foreign national may be deported.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13658,7 +13658,7 @@ "text": "Mr. Charkaoui is a permanent resident, while Messrs. Harkat and Almrei are foreign nationals who had been recognized as Convention refugees. All were living in Canada when they were arrested and detained. At the time of the decisions on appeal, all had been detained for some time — since 2003, 2002 and 2001 respectively. In 2001, a judge of the Federal Court determined Mr. Almrei’s certificate to be reasonable; another determined Mr. Harkat’s certificate to be reasonable in 2005. The reasonableness of Mr. Charkaoui’s certificate has yet to be determined. Messrs. Charkaoui and Harkat were released on conditions in 2005 and 2006 respectively, but Mr. Harkat has been advised that he will be deported to Algeria, which he is contesting in other proceedings. Mr. Almrei remains in detention. In all these cases, the detentions were based on allegations that the individuals constituted a threat to the security of Canada by reason of involvement in terrorist activities. In the course of their detentions, all three appellants challenged, unsuccessfully, the constitutionality of the IRPA ’s certificate scheme and detention review process. III. Issues", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13676,7 +13676,7 @@ "text": "The appellants argue that the IRPA ’s certificate scheme under which their detentions were ordered is unconstitutional. They argue that it violates five provisions of the Charter : the s. 7 guarantee of life, liberty and security of the person; the s. 9 guarantee against arbitrary detention; the s. 10(c) guarantee of a prompt review of detention; the s. 12 guarantee against cruel and unusual treatment; and the s. 15 guarantee of equal protection and equal benefit of the law. They also allege violations of unwritten constitutional principles. I discuss these claims under the following headings: A. Does the procedure under the IRPA for determining the reasonableness of the certificate infringe s. 7 of the Charter , and if so, is the infringement justified under s. 1 of the Charter ? B. Does the detention of permanent residents or foreign nationals under the IRPA infringe ss. 7 , 9 , 10( c ) or 12 of the Charter , and if so, are the infringements justified under s. 1 of the Charter ? C. Do the certificate and detention review procedures discriminate between citizens and non-citizens, contrary to s. 15 of the Charter , and if so, is the discrimination justified under s. 1 of the Charter ? D. Are the IRPA certificate provisions inconsistent with the constitutional principle of the rule of law? A. Does the Procedure Under the IRPA for Determining the Reasonableness of the Certificate Infringe Section 7 of the Charter , and if so, Is the Infringement Justified Under Section 1 of the Charter ? 1. Is Section 7 of the Charter Engaged?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13694,7 +13694,7 @@ "text": "Section 7 of the Charter guarantees the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. This requires a claimant to prove two matters: first, that there has been or could be a deprivation of the right to life, liberty and security of the person, and second, that the deprivation was not or would not be in accordance with the principles of fundamental justice. If the claimant succeeds, the government bears the burden of justifying the deprivation under s. 1, which provides that the rights guaranteed by the Charter are subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.\n\nThe provisions at issue, found at Division 9 of Part 1 of the IRPA , clearly deprive detainees such as the appellants of their liberty. The person named in a certificate can face detention pending the outcome of the proceedings. In the case of a foreign national, this detention is automatic and lasts at least until 120 days after the certificate is deemed reasonable. For both foreign nationals and permanent residents, the period of detention can be, and frequently is, several years. Indeed, Mr. Almrei remains in detention and does not know when, if ever, he will be released.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13712,7 +13712,7 @@ "text": "The detainee’s security may be further affected in various ways. The certificate process may lead to removal from Canada, to a place where his or her life or freedom would be threatened: see e.g. Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 207, per Wilson J. A certificate may bring with it the accusation that one is a terrorist, which could cause irreparable harm to the individual, particularly if he or she is eventually deported to his or her home country. Finally, a person who is determined to be inadmissible on grounds of security loses the protection of s. 115(1) of the IRPA , which means that under s. 115(2), he or she can be deported to torture if the Minister is of the opinion that the person is a danger to the security of Canada.\n\nIn Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3, 2002 SCC 1, this Court stated, at para. 76, that “barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter .” More recently, the Federal Court has ruled that another certificate detainee is at risk of torture if deported, and that there were no exceptional circumstances justifying such a deportation: Jaballah (Re) (2006), 148 C.R.R. (2d) 1, 2006 FC 1230. The appellants claim that they would be at risk of torture if deported to their countries of origin. But in each of their cases, this remains to be proven as part of an application for protection under the provisions of Part 2 of the IRPA . The issue of deportation to torture is consequently not before us here.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13730,7 +13730,7 @@ "text": "The individual interests at stake suggest that s. 7 of the Charter , the purpose of which is to protect the life, liberty and security of the person, is engaged, and this leads directly to the question whether the IRPA ’s impingement on these interests conforms to the principles of fundamental justice. The government argues, relying on Medovarski v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, 2005 SCC 51, that s. 7 does not apply because this is an immigration matter. The comment from that case on which the government relies was made in response to a claim that to deport a non-citizen violates s. 7 of the Charter . In considering this claim, the Court, per McLachlin C.J., noted, at para. 46, citing Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711, at p. 733, that “[t]he most fundamental principle of immigration law is that non-citizens do not have an unqualified right to enter or remain in Canada”. The Court added: “Thus the deportation of a non-citizen in itself cannot implicate the liberty and security interests protected by s. 7” (Medovarski, at para. 46 (emphasis added)).\n\nMedovarski thus does not stand for the proposition that proceedings related to deportation in the immigration context are immune from s. 7 scrutiny. While the deportation of a non-citizen in the immigration context may not in itself engage s. 7 of the Charter , some features associated with deportation, such as detention in the course of the certificate process or the prospect of deportation to torture, may do so.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13748,7 +13748,7 @@ "text": "In determining whether s. 7 applies, we must look at the interests at stake rather than the legal label attached to the impugned legislation. As Professor Hamish Stewart writes: Many of the principles of fundamental justice were developed in criminal cases, but their application is not restricted to criminal cases: they apply whenever one of the three protected interests is engaged. Put another way, the principles of fundamental justice apply in criminal proceedings, not because they are criminal proceedings, but because the liberty interest is always engaged in criminal proceedings. [Emphasis in original.] (“Is Indefinite Detention of Terrorist Suspects Really Constitutional?” (2005), 54 U.N.B.L.J. 235, at p. 242) I conclude that the appellants’ challenges to the fairness of the process leading to possible deportation and the loss of liberty associated with detention raise important issues of liberty and security, and that s. 7 of the Charter is engaged. 2. How Do Security Considerations Affect the Section 7 Analysis?\n\nSection 7 of the Charter requires that laws that interfere with life, liberty and security of the person conform to the principles of fundamental justice — the basic principles that underlie our notions of justice and fair process. These principles include a guarantee of procedural fairness, having regard to the circumstances and consequences of the intrusion on life, liberty or security: Suresh, at para. 113.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13766,7 +13766,7 @@ "text": "Section 7 of the Charter requires not a particular type of process, but a fair process having regard to the nature of the proceedings and the interests at stake: United States of America v. Ferras, [2006] 2 S.C.R. 77, 2006 SCC 33, at para. 14; R. v. Rodgers, [2006] 1 S.C.R. 554, 2006 SCC 15, at para. 47; Idziak v. Canada (Minister of Justice), [1992] 3 S.C.R. 631, at pp. 656-57. The procedures required to meet the demands of fundamental justice depend on the context (see Rodgers; R. v. Lyons, [1987] 2 S.C.R. 309, at p. 361; Chiarelli, at pp. 743-44; Mount Sinai Hospital Center v. Quebec (Minister of Health and Social Services), [2001] 2 S.C.R. 281, 2001 SCC 41, at paras. 20-21). Societal interests may be taken into account in elucidating the applicable principles of fundamental justice: R. v. Malmo-Levine, [2003] 3 S.C.R. 571, 2003 SCC 74, at para. 98.\n\nUnlike s. 1, s. 7 is not concerned with whether a limit on life, liberty or security of the person is justified, but with whether the limit has been imposed in a way that respects the principles of fundamental justice. Hence, it has been held that s. 7 does not permit “a free‑standing inquiry . . . into whether a particular legislative measure ‘strikes the right balance’ between individual and societal interests in general” (Malmo-Levine, at para. 96). Nor is “achieving the right balance . . . itself an overarching principle of fundamental justice” (ibid.). As the majority in Malmo-Levine noted, to hold otherwise “would entirely collapse the s. 1 inquiry into s. 7” (ibid.). This in turn would relieve the state from its burden of justifying intrusive measures, and require the Charter complainant to show that the measures are not justified.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13784,7 +13784,7 @@ "text": "The question at the s. 7 stage is whether the principles of fundamental justice relevant to the case have been observed in substance, having regard to the context and the seriousness of the violation. The issue is whether the process is fundamentally unfair to the affected person. If so, the deprivation of life, liberty or security of the person simply does not conform to the requirements of s. 7. The inquiry then shifts to s. 1 of the Charter , at which point the government has an opportunity to establish that the flawed process is nevertheless justified having regard, notably, to the public interest.\n\nIt follows that while administrative constraints associated with the context of national security may inform the analysis on whether a particular process is fundamentally unfair, security concerns cannot be used to excuse procedures that do not conform to fundamental justice at the s. 7 stage of the analysis. If the context makes it impossible to adhere to the principles of fundamental justice in their usual form, adequate substitutes may be found. But the principles must be respected to pass the hurdle of s. 7. That is the bottom line.\n\nIn the instant case, the context is the detention, incidental to their removal or an attempt to remove them from the country, of permanent residents and foreign nationals who the ministers conclude pose a threat to national security. This context may impose certain administrative constraints that may be properly considered at the s. 7 stage. Full disclosure of the information relied on may not be possible. The executive branch of government may be required to act quickly, without recourse, at least in the first instance, to the judicial procedures normally required for the deprivation of liberty or security of the person.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13802,7 +13802,7 @@ "text": "At the same time, it is a context that may have important, indeed chilling, consequences for the detainee. The seriousness of the individual interests at stake forms part of the contextual analysis. As this Court stated in Suresh, “[t]he greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter ” (para. 118). Thus, “factual situations which are closer or analogous to criminal proceedings will merit greater vigilance by the courts”: Dehghani v. Canada (Minister of Employment and Immigration), [1993] 1 S.C.R. 1053, at p. 1077, per Iacobucci J.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13820,7 +13820,7 @@ "text": "The potential consequences of deportation combined with allegations of terrorism have been under a harsh spotlight due to the recent report of the Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar. Mr. Arar, a Canadian citizen born in Syria, was detained by American officials and deported to Syria. The report concludes that it is “very likely that, in making the decisions to detain and remove Mr. Arar to Syria, the U.S. authorities relied on information about Mr. Arar provided by the RCMP”, including unfounded suspicions linking Mr. Arar to terrorist groups: Report of the Events Relating to Maher Arar: Analysis and Recommendations (2006) (“Arar Inquiry”), at p. 30. In Syria, Mr. Arar was tortured and detained under inhumane conditions for over 11 months. In his report, Commissioner O’Connor recommends enhanced review and accountability mechanisms for agencies dealing with national security, including not only the Royal Canadian Mounted Police, but also Citizenship and Immigration Canada and the Canada Border Services Agency. He notes that these immigration-related institutions can have an important impact on individual rights but that there is a lack of transparency surrounding their activities because their activities often involve sensitive national security information that cannot be disclosed to the public: A New Review Mechanism for the RCMP’s National Security Activities (2006), at pp. 562-65. Moreover, the sensitive nature of security information means that investigations lead to fewer prosecutions. This, in turn, restricts the ability of courts to guarantee individual rights: “Unless charges are laid, . . .", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13838,7 +13838,7 @@ "text": "the choice of investigative targets, methods of information collection and exchange, and means of investigation generally will not be subject to judicial scrutiny, media coverage or public debate” (p. 439).\n\nThe procedures required to conform to the principles of fundamental justice must reflect the exigencies of the security context. Yet they cannot be permitted to erode the essence of s. 7. The principles of fundamental justice cannot be reduced to the point where they cease to provide the protection of due process that lies at the heart of s. 7 of the Charter . The protection may not be as complete as in a case where national security constraints do not operate. But to satisfy s. 7, meaningful and substantial protection there must be. 3. Relevant Principles of Fundamental Justice\n\nThe overarching principle of fundamental justice that applies here is this: before the state can detain people for significant periods of time, it must accord them a fair judicial process: New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46. “It is an ancient and venerable principle that no person shall lose his or her liberty without due process according to the law, which must involve a meaningful judicial process”: Ferras, at para. 19. This principle emerged in the era of feudal monarchy, in the form of the right to be brought before a judge on a motion of habeas corpus. It remains as fundamental to our modern conception of liberty as it was in the days of King John.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13856,7 +13856,7 @@ "text": "This basic principle has a number of facets. It comprises the right to a hearing. It requires that the hearing be before an independent and impartial magistrate. It demands a decision by the magistrate on the facts and the law. And it entails the right to know the case put against one, and the right to answer that case. Precisely how these requirements are met will vary with the context. But for s. 7 to be satisfied, each of them must be met in substance.\n\nThe IRPA process includes a hearing. The process consists of two phases, one executive and one judicial. There is no hearing at the executive phase that results in issuance of the certificate. However, this is followed by a review before a judge, where the named person is afforded a hearing. Thus, the first requirement, that of a hearing, is met.\n\nQuestions arise, however, on the other requirements, namely: that the judge be independent and impartial; that the judge make a judicial decision based on the facts and the law; and finally, that the named person be afforded an opportunity to meet the case put against him or her by being informed of that case and being allowed to question or counter it. I conclude that the IRPA scheme meets the first requirement of independence and impartiality, but fails to satisfy the second and third requirements, which are interrelated here. 4. Is the Judge Independent and Impartial?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13874,7 +13874,7 @@ "text": "Although the scope of the required hearing can vary according to context (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817), a hearing must include “[a]n independent judicial phase and an impartial judge” (Ferras, at para. 25). This requirement is also consistent with the unwritten constitutional principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island, [1997] 3 S.C.R. 3. It has also been called “the cornerstone of the common law duty of procedural fairness” (Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248, 2004 SCC 42 (“Re Bagri”), at para. 81), and is necessary in order to ensure judicial impartiality: R. v. Lippé, [1991] 2 S.C.R. 114, at p. 139. It is not enough that the judge in fact be independent and impartial; fundamental justice requires that the judge also appear to be independent and impartial. This flows from the fact that judicial independence has two facets: actual independence and perceived independence (Valente v. The Queen, [1985] 2 S.C.R. 673, at p. 689).\n\nThe IRPA scheme provides for the certificate issued by the ministers to be reviewed by a “designated judge”, a judge of the Federal Court of Canada. The question here is whether, from an institutional perspective, the role assigned to designated judges under the IRPA leads to a perception that independence and impartiality are compromised.\n\nThe designated judge has been aptly described as the “cornerstone of the procedure established by Parliament” in the IRPA (Charkaoui (Re), [2004] 3 F.C.R. 32, 2003 FC 1419, at para. 120, per Noël J.). The judge is the sole avenue of review for the named person and the only person capable of providing the essential judicial component of the process.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13892,7 +13892,7 @@ "text": "When reviewing the certificate, the judge sees all the material relied on by the government. But if the government claims confidentiality for certain material, the judge cannot share this material with the named person. The judge must make his or her decision without hearing any objections the named person might be able to make, were he or she granted access to the whole of the record. Part of the hearing may be held in camera, with only the judge and the government lawyers in the room. The named person is not there. His or her lawyer is not there. There is no one to speak for the person or to test the evidence put against him or her.\n\nThese circumstances may give rise to a perception that the designated judge under the IRPA may not be entirely independent and impartial as between the state and the person named in the certificate. Speaking at a conference in March 2002, Hugessen J. of the Federal Court expressed unease with the role assigned to designated judges under the IRPA : We do not like this process of having to sit alone hearing only one party, and looking at the materials produced by only one party . . . . If there is one thing that I learned in my practice at the Bar, and I have managed to retain it through all these years, it is that good cross-examination requires really careful preparation and a good knowledge of your case. And by definition, judges do not do that. . . . [W]e do not have any knowledge except what is given to us and when it is only given to us by one party we are not well suited to test the materials that are put before us. [Emphasis added.] (J. K. Hugessen, “Watching the Watchers: Democratic Oversight”, in D. Daubney et al., eds., Terrorism, Law and Democracy: How is Canada changing following September 11? (2002), 381, at p. 384)", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13910,7 +13910,7 @@ "text": "Three related concerns arise with respect to independence and impartiality. First is the concern that the IRPA may be perceived to deprive the judge of his or her independent judicial role and co-opt the judge as an agent of the executive branch of government. Second is the concern that the designated judge functions as an investigative officer rather than a judge. Third is the concern that the judge, whose role includes compensating for the fact that the named person may not have access to material and may not be present at the hearing, will become associated with this person’s case.\n\nThe first concern is linked to the degree of deference that the judge accords to the ministers’ conclusion that the facts supported the issuance of a certificate and the detention of the named person. Judges working under the process have eschewed an overly deferential approach, insisting instead on a searching examination of the reasonableness of the certificate on the material placed before them: Jaballah, Re (2004), 247 F.T.R. 68, 2004 FC 299; Charkaoui (Re), [2005] 2 F.C.R. 299, 2004 FCA 421, at para. 74. They are correct to do so, having regard to the language of the provision, the history of its adoption, and the role of the designated judge.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13928,7 +13928,7 @@ "text": "First, an active role for the designated judge is justified by the language of the IRPA and the standards of review it establishes. The statute requires the designated judge to determine whether the certificate is “reasonable”, and emphasizes factual scrutiny by instructing the judge to do so “on the basis of the information and evidence available” (s. 80(1)). This language, as well as the accompanying factual, legal and administrative context, leads to the conclusion that the designated judge must review the certificate on a standard of reasonableness. Likewise, since the ministers’ decision to detain a permanent resident is based on “reasonable grounds to believe” (s. 82(1)), “[i]t is logical to assume that in subsequent reviews by a designated judge, the same standard will be used” (Charkaoui (Re), [2005] 3 F.C.R. 389, 2005 FC 248, at para. 30). The “reasonable grounds to believe” standard requires the judge to consider whether “there is an objective basis . . . which is based on compelling and credible information”: Mugesera v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100, 2005 SCC 40, at para. 114. “Reasonable grounds to believe” is the appropriate standard for judges to apply when reviewing a continuation of detention under the certificate provisions of the IRPA . The IRPA therefore does not ask the designated judge to be deferential, but, rather, asks him or her to engage in a searching review.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13946,7 +13946,7 @@ "text": "This interpretation of the IRPA is confirmed by statements made in the course of the adoption of the scheme. While it was considering the IRPA , the Standing Committee on Citizenship and Immigration was informed that the role of the designated judge would be to avoid treatment that is unfair, arbitrary, or in violation of due process (Transcript of the Standing Committee on Citizenship and Immigration, Thursday, April 26, 2001 (online)).\n\nFinally, the fact that the designated judge may have access to more information than the ministers did in making their initial decision to issue a certificate and detain suggests that the judge possesses relative expertise on the matters at issue and is no mere rubber stamp: Charkaoui (Re), 2003 FC 1419, at para. 125.\n\nI conclude that a non-deferential role for the designated judge goes some distance toward alleviating the first concern, that the judge will be perceived to be in the camp of the government.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13964,7 +13964,7 @@ "text": "The second concern is that the judge may be seen to function more as an investigator than as an independent and impartial adjudicator. The law is clear that the principles of fundamental justice are breached if a judge is reduced to an executive, investigative function. At the same time, the mere fact that a judge is required to assist in an investigative activity does not deprive the judge of the requisite independence. In Re Bagri, the Court considered whether a provision of the Criminal Code , R.S.C. 1985, c. C-46 , that provides for a judge to assist the state in gathering evidence in the investigation of a terrorist offence violated s. 7 or s. 11( d ) of the Charter . Under s. 83.28, a judge can order a person to attend before the judge (or before another judge) to give information on a suspected past or future terrorism offence, and supervise the taking of the person’s statement. The hearing can take place in camera, and its very existence can be kept secret. Critics of s. 83.28 argued that it co-opts the presiding judge into performing an investigative rather than an adjudicative role. The majority held that the provision violates neither s. 7 of the Charter nor the unwritten principle of judicial independence. It stressed that s. 83.28 gives judges broad discretion to vary the terms of the order made under it and to ensure that constitutional and common law values are respected. It also noted that judges routinely participate in investigations in the criminal context and that their role in these situations is to “act as a check against state excess” (para. 86), and emphasized that in the context of investigative hearings the judge was not asked to question the individual or challenge the evidence, but merely to mediate and ensure the fairness of the proceeding.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -13982,7 +13982,7 @@ "text": "However, it warned that “once legislation invokes the aid of the judiciary, we must remain vigilant to ensure that the integrity of its role is not compromised or diluted” (para. 87).\n\nThe IRPA provisions before the Court, like s. 83.28 of the Criminal Code , preserve the essential elements of the judicial role. It is even clearer in this case than in Re Bagri that the process established by the legislation at issue is not purely investigative; the judge’s task of determining whether the certificate is “reasonable” seems on its face closer to adjudicative review of an executive act than to investigation. On the other hand, the provisions seem to require the judge to actively vet the evidence, an activity that the Court viewed as suspect in Re Bagri. Noël J., the designated judge for Mr. Charkaoui’s case, stated: Designated judges preside over hearings and hear the Minister’s witnesses. They examine witnesses themselves as the need arises. They examine the documents carefully to determine which information is related to security and which information is not. In order to do so, they examine, among other things, the sources of the information, the way in which it was obtained, the reliability of the sources and the method used, and whether it is possible to corroborate the information by other means. (2003 FC 1419, at para. 101) These comments suggest that while the designated judge may be more involved in vetting and skeptically scrutinizing the evidence than would be the case in a normal judicial hearing, the judge is nevertheless performing the adjudicative function of evaluation, rather than the executive function of investigation. However, care must be taken to avoid allowing the investigative aspect of the process to overwhelm its adjudicative aspect.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14000,7 +14000,7 @@ "text": "The third concern is that the judge’s role as sole protector of the named person’s interest may associate the judge, in fact or perception, with that interest. A judge who is obliged to take on a “defence” role in the absence of counsel may unconsciously become associated with that camp: R. v. Taubler (1987), 20 O.A.C. 64, at p. 71; R. v. Turlon (1989), 49 C.C.C. (3d) 186 (Ont. C.A.), at p. 191. This concern must be balanced against the opposite concern that the judge may appear to be part of the government scheme and hence in the government’s camp. The critical consideration, however, is that the IRPA permits — indeed requires — the judge to conduct the review in an independent and judicial fashion. Provided the judge does so, the scheme cannot be condemned on the ground that he or she is, in fact or perception, in the named person’s camp.\n\nI conclude that, on its face, the IRPA process is designed to preserve the independence and impartiality of the designated judge, as required by s. 7. Properly followed by judges committed to a searching review, it cannot be said to compromise the perceived independence and impartiality of the designated judge.\n\nI note that this conclusion conclusively rebuts the appellant Charkaoui’s contention that the IRPA breaches the unwritten constitutional principle of judicial independence affirmed in Provincial Court Judges’ Assn. of New Brunswick v. New Brunswick (Minister of Justice), [2005] 2 S.C.R. 286, 2005 SCC 44. 5. Is the Decision Based on the Facts and the Law?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14018,7 +14018,7 @@ "text": "To comply with s. 7 of the Charter , the magistrate must make a decision based on the facts and the law. In the extradition context, the principles of fundamental justice have been held to require, “at a minimum, a meaningful judicial assessment of the case on the basis of the evidence and the law. A judge considers the respective rights of the litigants or parties and makes findings of fact on the basis of evidence and applies the law to those findings. Both facts and law must be considered for a true adjudication. Since Bonham’s Case [(1610), 8 Co. Rep. 113b, 77 E.R. 646], the essence of a judicial hearing has been the treatment of facts revealed by the evidence in consideration of the substantive rights of the parties as set down by law” (Ferras, at para. 25). The individual and societal interests at stake in the certificate of inadmissibility context suggest similar requirements.\n\nThe IRPA process at issue seeks to meet this requirement by placing material before the judge for evaluation. As a practical matter, most if not all of the material that the judge considers is produced by the government and can be vetted for reliability and sufficiency only by the judge. The normal standards used to ensure the reliability of evidence in court do not apply: s. 78(j). The named person may be shown little or none of the material relied on by the ministers and the judge, and may thus not be in a position to know or challenge the case against him or her. It follows that the judge’s decision, while based on the evidence before him or her, may not be based on all of the evidence available.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14036,7 +14036,7 @@ "text": "There are two types of judicial systems, and they ensure that the full case is placed before the judge in two different ways. In inquisitorial systems, as in Continental Europe, the judge takes charge of the gathering of evidence in an independent and impartial way. By contrast, an adversarial system, which is the norm in Canada, relies on the parties — who are entitled to disclosure of the case to meet, and to full participation in open proceedings — to produce the relevant evidence. The designated judge under the IRPA does not possess the full and independent powers to gather evidence that exist in the inquisitorial process. At the same time, the named person is not given the disclosure and the right to participate in the proceedings that characterize the adversarial process. The result is a concern that the designated judge, despite his or her best efforts to get all the relevant evidence, may be obliged — perhaps unknowingly — to make the required decision based on only part of the relevant evidence. As Hugessen J. has noted, the adversarial system provides “the real warranty that the outcome of what we do is going to be fair and just” (p. 385); without it, the judge may feel “a little bit like a fig leaf” (Proceedings of the March 2002 Conference, at p. 386).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14054,7 +14054,7 @@ "text": "Judges of the Federal Court have worked assiduously to overcome the difficulties inherent in the role the IRPA has assigned to them. To their credit, they have adopted a pseudo-inquisitorial role and sought to seriously test the protected documentation and information. But the role remains pseudo-inquisitorial. The judge is not afforded the power to independently investigate all relevant facts that true inquisitorial judges enjoy. At the same time, since the named person is not given a full picture of the case to meet, the judge cannot rely on the parties to present missing evidence. The result is that, at the end of the day, one cannot be sure that the judge has been exposed to the whole factual picture.\n\nSimilar concerns arise with respect to the requirement that the decision be based on the law. Without knowledge of the information put against him or her, the named person may not be in a position to raise legal objections relating to the evidence, or to develop legal arguments based on the evidence. The named person is, to be sure, permitted to make legal representations. But without disclosure and full participation throughout the process, he or she may not be in a position to put forward a full legal argument. 6. Is the “Case to Meet” Principle Satisfied?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14072,7 +14072,7 @@ "text": "Last but not least, a fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case. This right is well established in immigration law. The question is whether the procedures “provide an adequate opportunity for [an affected person] to state his case and know the case he has to meet” (Singh, at p. 213). Similarly, in Suresh, the Court held that a person facing deportation to torture under s. 53(1)(b) of the former Immigration Act, R.S.C. 1985, c. I-2, must “[n]ot only . . . be informed of the case to be met . . . [but] also be given an opportunity to challenge the information of the Minister where issues as to its validity arise” (para. 123).\n\nUnder the IRPA’s certificate scheme, the named person may be deprived of access to some or all of the information put against him or her, which would deny the person the ability to know the case to meet. Without this information, the named person may not be in a position to contradict errors, identify omissions, challenge the credibility of informants or refute false allegations. This problem is serious in itself. It also underlies the concerns, discussed above, about the independence and impartiality of the designated judge, and the ability of the judge to make a decision based on the facts and law.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14090,7 +14090,7 @@ "text": "Confidentiality is a constant preoccupation of the certificate scheme. The judge “shall ensure” the confidentiality of the information on which the certificate is based and of any other evidence if, in the opinion of the judge, disclosure would be injurious to national security or to the safety of any person: s. 78(b). At the request of either minister “at any time during the proceedings”, the judge “shall hear” information or evidence in the absence of the named person and his or her counsel if, in the opinion of the judge, its disclosure would be injurious to national security or to the safety of any person: s. 78(e). The judge “shall provide” the named person with a summary of information that enables him or her to be reasonably informed of the circumstances giving rise to the certificate, but the summary cannot include anything that would, in the opinion of the judge, be injurious to national security or to the safety of any person: s. 78(h). Ultimately, the judge may have to consider information that is not included in the summary: s. 78(g). In the result, the judge may be required to decide the case, wholly or in part, on the basis of information that the named person and his or her counsel never see. The named person may know nothing of the case to meet, and although technically afforded an opportunity to be heard, may be left in a position of having no idea as to what needs to be said.\n\nThe same concerns arise with respect to the detention review process under ss. 83 and 84 of the IRPA . Section 78 applies to detention reviews under s. 83, and it has been found to apply to detention reviews under s. 84(2): Almrei v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 142, 2005 FCA 54, at paras. 71-72.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14108,7 +14108,7 @@ "text": "The right to know the case to be met is not absolute. Canadian statutes sometimes provide for ex parte or in camera hearings, in which judges must decide important issues after hearing from only one side. In Rodgers, the majority of this Court declined to recognize notice and participation as invariable constitutional norms, emphasizing a context-sensitive approach to procedural fairness. And in Goodis v. Ontario (Ministry of Correctional Services), [2006] 2 S.C.R. 32, 2006 SCC 31, the Court, per Rothstein J., held that while “[h]earing from both sides of an issue is a principle to be departed from only in exceptional circumstances”, in the ordinary case, a judge would be “well equipped . . . to determine whether a record is subject to [solicitor-client] privilege” without the assistance of counsel on both sides (para. 21).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14126,7 +14126,7 @@ "text": "More particularly, the Court has repeatedly recognized that national security considerations can limit the extent of disclosure of information to the affected individual. In Chiarelli, this Court found that the Security Intelligence Review Committee could, in investigating certificates under the former Immigration Act, 1976, S.C. 1976-77, c. 52 (later R.S.C. 1985, c. I-2), refuse to disclose details of investigation techniques and police sources. The context for elucidating the principles of fundamental justice in that case included the state’s “interest in effectively conducting national security and criminal intelligence investigations and in protecting police sources” (p. 744). In Suresh, this Court held that a refugee facing the possibility of deportation to torture was entitled to disclosure of all the information on which the Minister was basing his or her decision, “[s]ubject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents” (para. 122). And, in Ruby v. Canada (Solicitor General), [2002] 4 S.C.R. 3, 2002 SCC 75, the Court upheld the section of the Privacy Act , R.S.C. 1985, c. P-21 , that mandates in camera and ex parte proceedings where the government claims an exemption from disclosure on grounds of national security or maintenance of foreign confidences. The Court made clear that these societal concerns formed part of the relevant context for determining the scope of the applicable principles of fundamental justice (paras. 38-44).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14144,7 +14144,7 @@ "text": "In some contexts, substitutes for full disclosure may permit compliance with s. 7 of the Charter . For example, in Rodgers, the majority of the Court upheld the constitutionality of ex parte hearings for applications under s. 487.055 of the Criminal Code to take DNA samples from listed multiple offenders, on the ground that the protections Parliament had put in place were adequate (paras. 51-52). Similarly, in Chiarelli, the Court upheld the lack of disclosure on the basis that the information disclosed by way of summary and the opportunity to call witnesses and cross-examine RCMP witnesses who testified in camera satisfied the requirements of fundamental justice. And in Ruby, the Court held that the substitute measures provided by Parliament satisfied the constitutional requirements of procedural fairness (para. 42). Arbour J. stated: “In such circumstances, fairness is met through other procedural safeguards such as subsequent disclosure, judicial review and rights of appeal” (para. 40).\n\nWhere limited disclosure or ex parte hearings have been found to satisfy the principles of fundamental justice, the intrusion on liberty and security has typically been less serious than that effected by the IRPA : Rodgers, at para. 53. It is one thing to deprive a person of full information where fingerprinting is at stake, and quite another to deny him or her information where the consequences are removal from the country or indefinite detention. Moreover, even in the less intrusive situations, courts have insisted that disclosure be as specific and complete as possible.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14162,7 +14162,7 @@ "text": "In the context of national security, non-disclosure, which may be extensive, coupled with the grave intrusions on liberty imposed on a detainee, makes it difficult, if not impossible, to find substitute procedures that will satisfy s. 7. Fundamental justice requires substantial compliance with the venerated principle that a person whose liberty is in jeopardy must be given an opportunity to know the case to meet, and an opportunity to meet the case. Yet the imperative of the protection of society may preclude this. Information may be obtained from other countries or from informers on condition that it not be disclosed. Or it may simply be so critical that it cannot be disclosed without risking public security. This is a reality of our modern world. If s. 7 is to be satisfied, either the person must be given the necessary information, or a substantial substitute for that information must be found. Neither is the case here.\n\nThe only protection the IRPA accords the named person is a review by a designated judge to determine whether the certificate is reasonable. The ministers argue that this is adequate in that it maintains a “delicate balance” between the right to a fair hearing and the need to protect confidential security intelligence information. The appellants, on the other hand, argue that the judge’s efforts, however conscientious, cannot provide an effective substitute for informed participation.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14180,7 +14180,7 @@ "text": "I agree with the appellants. The issue at the s. 7 stage, as discussed above, is not whether the government has struck the right balance between the need for security and individual liberties; that is the issue at the stage of s. 1 justification of an established limitation on a Charter right. The question at the s. 7 stage is whether the basic requirements of procedural justice have been met, either in the usual way or in an alternative fashion appropriate to the context, having regard to the government’s objective and the interests of the person affected. The fairness of the IRPA procedure rests entirely on the shoulders of the designated judge. Those shoulders cannot by themselves bear the heavy burden of assuring, in fact and appearance, that the decision on the reasonableness of the certificate is impartial, is based on a full view of the facts and law, and reflects the named person’s knowledge of the case to meet. The judge, working under the constraints imposed by the IRPA , simply cannot fill the vacuum left by the removal of the traditional guarantees of a fair hearing. The judge sees only what the ministers put before him or her. The judge, knowing nothing else about the case, is not in a position to identify errors, find omissions or assess the credibility and truthfulness of the information in the way the named person would be. Although the judge may ask questions of the named person when the hearing is reopened, the judge is prevented from asking questions that might disclose the protected information. Likewise, since the named person does not know what has been put against him or her, he or she does not know what the designated judge needs to hear.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14198,7 +14198,7 @@ "text": "If the judge cannot provide the named person with a summary of the information that is sufficient to enable the person to know the case to meet, then the judge cannot be satisfied that the information before him or her is sufficient or reliable. Despite the judge’s best efforts to question the government’s witnesses and scrutinize the documentary evidence, he or she is placed in the situation of asking questions and ultimately deciding the issues on the basis of incomplete and potentially unreliable information.\n\nThe judge is not helpless; he or she can note contradictions between documents, insist that there be at least some evidence on the critical points, and make limited inferences on the value and credibility of the information from its source. Nevertheless, the judge’s activity on behalf of the named person is confined to what is presented by the ministers. The judge is therefore not in a position to compensate for the lack of informed scrutiny, challenge and counter-evidence that a person familiar with the case could bring. Such scrutiny is the whole point of the principle that a person whose liberty is in jeopardy must know the case to meet. Here that principle has not merely been limited; it has been effectively gutted. How can one meet a case one does not know? 7. Conclusion on Section 7", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14216,7 +14216,7 @@ "text": "In the IRPA, an attempt has been made to meet the requirements of fundamental justice essentially through one mechanism — the designated judge charged with reviewing the certificate of inadmissibility and the detention. To Parliament’s credit, a sincere attempt has been made to give the designated judge the powers necessary to discharge the role in an independent manner, based on the facts and the law. Yet, the secrecy required by the scheme denies the named person the opportunity to know the case put against him or her, and hence to challenge the government’s case. This, in turn, undermines the judge’s ability to come to a decision based on all the relevant facts and law. Despite the best efforts of judges of the Federal Court to breathe judicial life into the IRPA procedure, it fails to assure the fair hearing that s. 7 of the Charter requires before the state deprives a person of life, liberty or security of the person. I therefore conclude that the IRPA ’s procedure for determining whether a certificate is reasonable does not conform to the principles of fundamental justice as embodied in s. 7 of the Charter . The same conclusion necessarily applies to the detention review procedures under ss. 83 and 84 of the IRPA . 8. Is the Limit Justified Under Section 1 of the Charter ?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14234,7 +14234,7 @@ "text": "The Charter does not guarantee rights absolutely. The state is permitted to limit rights — including the s. 7 guarantee of life, liberty and security — if it can establish that the limits are demonstrably justifiable in a free and democratic society. This said, violations of s. 7 are not easily saved by s. 1. In Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, Lamer J. (as he then was) stated, for the majority: Section 1 may, for reasons of administrative expediency, successfully come to the rescue of an otherwise violation of s. 7, but only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics, and the like. [p. 518] The rights protected by s. 7 — life, liberty, and security of the person — are basic to our conception of a free and democratic society, and hence are not easily overridden by competing social interests. It follows that violations of the principles of fundamental justice, specifically the right to a fair hearing, are difficult to justify under s. 1: G. (J.). Nevertheless, the task may not be impossible, particularly in extraordinary circumstances where concerns are grave and the challenges complex.\n\nThe test to be applied in determining whether a violation can be justified under s. 1, known as the Oakes test (R. v. Oakes, [1986] 1 S.C.R. 103), requires a pressing and substantial objective and proportional means. A finding of proportionality requires: (a) means rationally connected to the objective; (b) minimal impairment of rights; and (c) proportionality between the effects of the infringement and the importance of the objective.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14252,7 +14252,7 @@ "text": "The protection of Canada’s national security and related intelligence sources undoubtedly constitutes a pressing and substantial objective. Moreover, the IRPA ’s provisions regarding the non‑disclosure of evidence at certificate hearings are rationally connected to this objective. The facts on this point are undisputed. Canada is a net importer of security information. This information is essential to the security and defence of Canada, and disclosure would adversely affect its flow and quality: see Ruby. This leaves the question whether the means Parliament has chosen, i.e. a certificate procedure leading to detention and deportation of non-citizens on the ground that they pose a threat to Canada’s security, minimally impairs the rights of non‑citizens.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14270,7 +14270,7 @@ "text": "The realities that confront modern governments faced with the challenge of terrorism are stark. In the interest of security, it may be necessary to detain persons deemed to pose a threat. At the same time, security concerns may preclude disclosure of the evidence on which the detention is based. But these tensions are not new. As we shall see, Canada has already devised processes that go further in preserving s. 7 rights while protecting sensitive information; until recently, one of these solutions was applicable in the security certificate context. Nor are these tensions unique to Canada: in the specific context of anti-terrorism legislation, the United Kingdom uses special counsel to provide a measure of protection to the detained person’s interests, while preserving the confidentiality of information that must be kept secret. These alternatives suggest that the IRPA regime, which places on the judge the entire burden of protecting the person’s interest, does not minimally impair the rights of non-citizens, and hence cannot be saved under s. 1 of the Charter . (a) Less Intrusive Alternatives\n\nThis is not the first time Canada has had to reconcile the demands of national security with the procedural rights guaranteed by the Charter . In a number of legal contexts, Canadian government institutions have found ways to protect sensitive information while treating individuals fairly. In some situations, the solution has involved the use of special counsel, in a manner closely approximating an adversarial process.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14288,7 +14288,7 @@ "text": "The Security Intelligence Review Committee (“SIRC”) is an independent review body that monitors the activities of the Canadian Security Intelligence Service (“CSIS”). Established in 1984 under the Canadian Security Intelligence Service Act, S.C. 1984, c. 21 (now R.S.C. 1985, c. C-23 ), SIRC is composed of three to five members of the Privy Council who are not currently serving in Parliament. Under the former Immigration Act, SIRC had the power to vet findings of inadmissibility based on alleged threats to national security; a ministerial certificate could not be issued without a SIRC investigation. If the Minister of Employment and Immigration and the Solicitor General were of the opinion that a non-citizen was inadmissible due to involvement in organized crime, espionage, subversion, acts of violence, etc., they were first obliged to make a report to SIRC: Immigration Act, s. 39(2). SIRC would then investigate the grounds for the report, providing the affected person with “a statement summarizing such information available to it as will enable the person to be as fully informed as possible of the circumstances giving rise to the report”: s. 39(6). After completing its investigation, SIRC would send a report to the Governor in Council containing its recommendation as to whether a security certificate should be issued: s. 39(9). A copy of the same report would be provided to the non-citizen: s. 39(10). If the Governor in Council was satisfied that the non-citizen was inadmissible on appropriate grounds, he or she could then direct the Minister of Employment and Immigration to issue a security certificate: s. 40(1).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14306,7 +14306,7 @@ "text": "Empowered to develop its own investigative procedures, SIRC established a formal adversarial process, with “a court-like hearing room” and “procedures that mirrored judicial proceedings as much as possible”. The process also included an independent panel of lawyers with security clearances to act as counsel to SIRC (M. Rankin, “The Security Intelligence Review Committee: Reconciling National Security with Procedural Fairness” (1990), 3 C.J.A.L.P. 173, at p. 179).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14324,7 +14324,7 @@ "text": "A SIRC member presiding at a hearing had the discretion to balance national security against procedural fairness in determining how much information could be disclosed to the affected person. The non-citizen and his or her counsel would normally be present in the hearing room, except when sensitive national security evidence was tendered. (The presiding SIRC member would decide whether to exclude the non-citizen during certain testimony.) At such a juncture, independent, security-cleared SIRC counsel would act on behalf of the non-citizen. The SIRC counsel were instructed to cross-examine witnesses for CSIS “with as much vigour as one would expect from the complainant’s counsel” (Rankin, at p. 184; SIRC Annual Report 1988-1989 (1989) (“SIRC Annual Report”), at p. 64). At the end of this ex parte portion of the hearing, the excluded person would be brought back into the room and provided with a summary, which would include “the gist of the evidence, without disclosing the national security information” (SIRC Annual Report, at p. 64). The SIRC counsel would negotiate the contents of the summary with CSIS, under the supervision of the presiding SIRC member (ibid.). The affected person and his or her counsel would then be allowed to ask their own questions, and to cross-examine on the basis of the summary (Rankin, at p. 184).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14342,7 +14342,7 @@ "text": "In the words of Professor Rankin, SIRC’s procedures represented “an attempt to preserve the best features of the adversarial process with its insistence on vigorous cross-examination, but not to run afoul of the requirements of national security” (p. 185). These procedures illustrate how special counsel can provide not only an effective substitute for informed participation, but can also help bolster actual informed participation by the affected person. Since the special counsel had a role in determining how much information would be included in the summary, disclosure was presumably more complete than would otherwise have been the case. Sensitive national security information was still protected, but the executive was required to justify the breadth of this protection.\n\nIn 1988 Parliament added s. 40.1 to the Immigration Act to empower the Minister and the Solicitor General to issue security certificates in respect of foreign nationals. Section 40.1 effectively bypassed the SIRC investigation process where foreign nationals were concerned, instead referring the certificate to a designated judge of the Federal Court for subsequent review. Security certificates in respect of permanent residents remained subject to SIRC scrutiny until 2002, when Parliament repealed the Immigration Act and replaced it with the IRPA .", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14360,7 +14360,7 @@ "text": "Certain elements of SIRC process may be inappropriate to the context of terrorism. Where there is a risk of catastrophic acts of violence, it would be foolhardy to require a lengthy review process before a certificate could be issued. But it was not suggested before this Court that SIRC’s special counsel system had not functioned well in connection with the review of certificates under the Immigration Act, nor was any explanation given for why, under the new system for vetting certificates and reviewing detentions, a special counsel process had not been retained.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14378,7 +14378,7 @@ "text": "The SIRC process is not the only example of the Canadian legal system striking a better balance between the protection of sensitive information and the procedural rights of individuals. A current example is found in the Canada Evidence Act , R.S.C. 1985, c. C-5 (“CEA ”), which permits the government to object to the disclosure of information on grounds of public interest, in proceedings to which the Act applies: ss. 37 to 39. Under the recent amendments to the CEA set out in the Anti-terrorism Act , S.C. 2001, c. 41 , a participant in a proceeding who is required to disclose or expects to disclose potentially injurious or sensitive information, or who believes that such information might be disclosed, must notify the Attorney General about the potential disclosure, and the Attorney General may then apply to the Federal Court for an order prohibiting the disclosure of the information: ss. 38.01, 38.02, 38.04. The judge enjoys considerable discretion in deciding whether the information should be disclosed. If the judge concludes that disclosure of the information would be injurious to international relations, national defence or national security, but that the public interest in disclosure outweighs in importance the public interest in non-disclosure, the judge may order the disclosure of all or part of the information, on such conditions as he or she sees fit. No similar residual discretion exists under the IRPA , which requires judges not to disclose information the disclosure of which would be injurious to national security or to the safety of any person. Moreover, the CEA makes no provision for the use of information that has not been disclosed.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14396,7 +14396,7 @@ "text": "While the CEA does not address the same problems as the IRPA , and hence is of limited assistance here, it illustrates Parliament’s concern under other legislation for striking a sensitive balance between the need for protection of confidential information and the rights of the individual.\n\nCrown and defence counsel in the recent Air India trial (R. v. Malik, [2005] B.C.J. No. 521 (QL), 2005 BCSC 350) were faced with the task of managing security and intelligence information and attempting to protect procedural fairness. The Crown was in possession of the fruits of a 17-year-long investigation into the terrorist bombing of a passenger aircraft and a related explosion in Narita, Japan. It withheld material on the basis of relevance, national security privilege and litigation privilege. Crown and defence counsel came to an agreement under which defence counsel obtained consents from their clients to conduct a preliminary review of the withheld material, on written undertakings not to disclose the material to anyone, including the client. Disclosure in a specific trial, to a select group of counsel on undertakings, may not provide a working model for general deportation legislation that must deal with a wide variety of counsel in a host of cases. Nevertheless, the procedures adopted in the Air India trial suggest that a search should be made for a less intrusive solution than the one found in the IRPA .", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14414,7 +14414,7 @@ "text": "The Arar Inquiry provides another example of the use of special counsel in Canada. The Commission had to examine confidential information related to the investigation of terrorism plots while preserving Mr. Arar’s and the public’s interest in disclosure. The Commission was governed by the CEA . To help assess claims for confidentiality, the Commissioner was assisted by independent security-cleared legal counsel with a background in security and intelligence, whose role was to act as amicus curiae on confidentiality applications. The scheme’s aim was to ensure that only information that was rightly subject to national security confidentiality was kept from public view. There is no indication that these procedures increased the risk of disclosure of protected information.\n\nFinally, I note the special advocate system employed by the Special Immigration Appeals Commission (“SIAC”) in the United Kingdom. SIAC and the special advocate system were created in response to Chahal v. United Kingdom, 15 November 1996, Reports of Judgments and Decisions 1996-V, p. 1831, in which the European Court of Human Rights had held that the procedure then in place was inadequate. The court in Chahal commented favourably on the idea of security‑cleared counsel instructed by the court, identifying it as being Canadian in origin (perhaps referring to the procedure developed by SIRC).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14432,7 +14432,7 @@ "text": "The U.K.’s special advocate system resembles the Canadian SIRC model. Section 6(1) of the Special Immigration Appeals Commission Act 1997 (U.K.), 1997, c. 68, states that the special advocate is appointed to “represent the interests of an appellant” in any proceedings before SIAC from which the appellant and his or her legal representatives are excluded. Section 6(4), however, specifies that the special advocate “shall not be responsible to the person whose interests he is appointed to represent”. Rule 35 of the Special Immigration Appeals Commission (Procedure) Rules 2003, S.I. 2003/1034, sets out the special advocate’s three main functions: (1) to make submissions to the Commission at any hearings from which the appellant and the appellant’s representatives are excluded; (2) to cross-examine witnesses at any such hearings; and (3) to make written submissions to the Commission. After seeing the protected information, the special advocate may not communicate with the appellant or the appellant’s representative without authorization from the Commission: rule 36. If the special advocate requests such authorization, the Commission gives the Secretary of State an opportunity to object to the proposed communication before deciding whether to authorize it: rule 38.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14450,7 +14450,7 @@ "text": "The use of special advocates has received widespread support in Canadian academic commentary. Professor Roach, for example, criticizes the Court of Appeal’s conclusion in Charkaoui (Re), 2004 FCA 421, that such a measure is not constitutionally required: In my view, this approach was in error because in camera and ex parte hearings offend basic notions of a fair hearing and special advocates constitute one example of an approach that is a more proportionate response to reconciling the need to keep some information secret and the need to ensure as much fairness and adversarial challenge as possible. [Emphasis added.] (K. Roach, “Ten Ways to Improve Canadian Anti-Terrorism Law” (2006), 51 Crim. L.Q. 102, at p. 120)\n\nThis said, the U.K.’s special advocate system has also been criticized for not going far enough. In April 2005, the House of Commons Constitutional Affairs Committee published a report on the operation of SIAC and the use of special advocates (The operation of the Special Immigration Appeals Commission (SIAC) and the use of Special Advocates). The Committee listed three important disadvantages faced by special advocates: (1) once they have seen the confidential material, they cannot, subject to narrow exceptions, take instructions from the appellant or the appellant’s counsel; (2) they lack the resources of an ordinary legal team, for the purpose of conducting in secret a full defence; and (3) they have no power to call witnesses (para. 52).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14468,7 +14468,7 @@ "text": "Despite these difficulties, SIAC itself has commented favourably on the assistance provided by special advocates, stating that as a result of the “rigorous cross-examination” of the government’s evidence by the special advocate, it was satisfied that the government’s assertions were unsupported by the evidence (M. v. Secretary of State for the Home Department, [2004] UKSIAC 17/2002 (BAILII), March 8, 2004, at para. 10). The England and Wales Court of Appeal upheld SIAC’s decision: [2004] 2 All E.R. 863, [2004] EWCA Civ 324. (b) The IRPA Scheme Does Not Minimally Impair the Named Person’s Rights\n\nParliament is not required to use the perfect, or least restrictive, alternative to achieve its objective: R. v. Chaulk, [1990] 3 S.C.R. 1303. However, bearing in mind the deference that is owed to Parliament in its legislative choices, the alternatives discussed demonstrate that the IRPA does not minimally impair the named person’s rights.\n\nUnder the IRPA, the government effectively decides what can be disclosed to the named person. Not only is the named person not shown the information and not permitted to participate in proceedings involving it, but no one but the judge may look at the information with a view to protecting the named person’s interests. Why the drafters of the legislation did not provide for special counsel to objectively review the material with a view to protecting the named person’s interest, as was formerly done for the review of security certificates by SIRC and is presently done in the United Kingdom, has not been explained. The special counsel system may not be perfect from the named person’s perspective, given that special counsel cannot reveal confidential material. But, without compromising security, it better protects the named person’s s. 7 interests.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14486,7 +14486,7 @@ "text": "I conclude that the IRPA ’s procedures for determining whether a certificate is reasonable and for detention review cannot be justified as minimal impairments of the individual’s right to a judicial determination on the facts and the law and right to know and meet the case. Mechanisms developed in Canada and abroad illustrate that the government can do more to protect the individual while keeping critical information confidential than it has done in the IRPA . Precisely what more should be done is a matter for Parliament to decide. But it is clear that more must be done to meet the requirements of a free and democratic society. B. Does the Detention of Permanent Residents or Foreign Nationals Under the IRPA Infringe Sections 7, 9, 10(c) or 12 of the Charter , and if so, Are the Infringements Justified Under Section 1 of the Charter ? 1. Time Constraints on Review for Foreign Nationals: Breach of Section 9 or Section 10(c)?\n\nSection 9 of the Charter guarantees freedom from arbitrary detention. This guarantee expresses one of the most fundamental norms of the rule of law. The state may not detain arbitrarily, but only in accordance with the law. The appellant Mr. Almrei argues that detention under the IRPA is arbitrary with respect to foreign nationals, first because it permits their detention without warrant and without regard to their personal circumstances, and second because it prevents review until 120 days after the certificate is confirmed. In both respects, foreign nationals are treated differently than permanent residents.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14504,7 +14504,7 @@ "text": "I would reject Mr. Almrei’s argument that automatic detention of foreign nationals is arbitrary because it is effected without regard to the personal circumstances of the detainee. Detention is not arbitrary where there are “standards that are rationally related to the purpose of the power of detention”: P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.), vol. 2, at p. 46-5. The triggering event for the detention of a foreign national is the signing of a certificate stating that the foreign national is inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality. The security ground is based on the danger posed by the named person, and therefore provides a rational foundation for the detention. R. v. Swain, [1991] 1 S.C.R. 933, in which this Court struck down a provision of the Criminal Code requiring that an accused acquitted of an offence on the basis of an insanity defence be detained automatically without a hearing, is distinguishable. The Court held that it was arbitrary to require the detention of persons acquitted by reason of mental disorder without the application of any standard whatsoever, because “[n]ot all of these individuals will be dangerous”: at p. 1013, per Lamer C.J. But in the national security context, the signature of a certificate under s. 77 of the IRPA on the ground of security is necessarily related to the dangerousness of the individual. While not all the other grounds for the issuance of a certificate under s. 77(1) are conclusive of the danger posed by the named person, danger is not the only constitutional basis upon which an individual can be detained, and arbitrariness of detention under the other grounds was not argued.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14522,7 +14522,7 @@ "text": "This leaves Mr. Almrei’s argument that the IRPA imposes arbitrary detention because it prevents review of the detention of foreign nationals until 120 days after the certificate is confirmed. Whether through habeas corpus or statutory mechanisms, foreign nationals, like others, have a right to prompt review to ensure that their detention complies with the law. This principle is affirmed in s. 10( c ) of the Charter . It is also recognized internationally: see Rasul v. Bush, 542 U.S. 466 (2004); Zadvydas v. Davis, 533 U.S. 678 (2001); art. 5 of the Convention for the Protection of Human Rights and Fundamental Freedoms, 213 U.N.T.S. 221 (“European Convention on Human Rights”); Slivenko v. Latvia [GC], No. 48321/99, ECHR 2003-X, p. 229. While the government accepts this principle, it argues that the 120-day period in s. 84(2) is sufficiently prompt, relying, as did the courts below, on the fact that foreign nationals can apply for release and depart from Canada at any time.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14540,7 +14540,7 @@ "text": "The lack of review for foreign nationals until 120 days after the reasonableness of the certificate has been judicially determined violates the guarantee against arbitrary detention in s. 9 of the Charter , a guarantee which encompasses the right to prompt review of detention under s. 10( c ) of the Charter . Permanent residents named in certificates are entitled to an automatic review within 48 hours. The same time frame for review of detention applies to both permanent residents and foreign nationals under s. 57 of the IRPA . And under the Criminal Code , a person who is arrested with or without a warrant is to be brought before a judge within 24 hours, or as soon as possible: s. 503(1). These provisions indicate the seriousness with which the deprivation of liberty is viewed, and offer guidance as to acceptable delays before this deprivation is reviewed.\n\nThe government submits that the detention provisions, and more specifically the absence of review for foreign nationals until 120 days after the certificate has been determined to be reasonable, reflect its objective of creating a timely removal process for individuals thought to constitute a danger to national security, and asserts that when the provisions were drafted, it was thought that the removal process would be so fast that there would be no need for review. This is more an admission of the excessiveness of the 120-day period than a justification.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14558,7 +14558,7 @@ "text": "It is clear that there may be a need for some flexibility regarding the period for which a suspected terrorist may be detained. Confronted with a terrorist threat, state officials may need to act immediately, in the absence of a fully documented case. It may take some time to verify and document the threat. Where state officials act expeditiously, the failure to meet an arbitrary target of a fixed number of hours should not mean the automatic release of the person, who may well be dangerous. However, this cannot justify the complete denial of a timely detention review. Permanent residents who pose a danger to national security are also meant to be removed expeditiously. If this objective can be pursued while providing permanent residents with a mandatory detention review within 48 hours, then how can a denial of review for foreign nationals for 120 days after the certificate is confirmed be considered a minimal impairment?\n\nI conclude that the lack of timely review of the detention of foreign nationals violates s. 9 and s. 10(c) and cannot be saved by s. 1. 2. Do Extended Periods of Detention Under the Scheme Violate Section 7 or the Section 12 Guarantee Against Cruel and Unusual Treatment?\n\nThe question at this point is whether the extended detention that may occur under the IRPA violates the guarantee against cruel and unusual treatment under s. 12 of the Charter . The threshold for breach of s. 12 is high. As stated by Lamer J. in Smith, treatment or punishment is cruel and unusual if it is “so excessive as to outrage [our] standards of decency”: R. v. Smith, [1987] 1 S.C.R. 1045, at p. 1067; also R. v. Wiles, [2005] 3 S.C.R. 895, 2005 SCC 84, at para. 4.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14576,7 +14576,7 @@ "text": "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. (The same may be true of onerous conditions of release that seriously restrict a person’s liberty without affording an opportunity to challenge the restrictions.) Conversely, 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: see Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.), per Rothstein J. (as he then was).\n\nMr. Almrei’s first submission is that “the combination of the legislative scheme and the conditions of detention . . . [transforms] the Appellant’s detention into one that is cruel and unusual”. I would reject this submission. This Court has not, in its past decisions, recognized s. 12 as a mechanism to challenge the overall fairness of a particular legislative regime.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14594,7 +14594,7 @@ "text": "More narrowly, however, it has been recognized that indefinite detention in circumstances where the detainee has no hope of release or recourse to a legal process to procure his or her release may cause psychological stress and therefore constitute cruel and unusual treatment: Eur. Court H.R., Soering case, judgment of 7 July 1989, Series A, No. 161, at para. 111; compare Lyons, at pp. 339-41. However, for the reasons that follow, I conclude that the IRPA does not impose cruel and unusual treatment within the meaning of s. 12 of the Charter because, although detentions may be lengthy, the IRPA , properly interpreted, provides a process for reviewing detention and obtaining release and for reviewing and amending conditions of release, where appropriate.\n\nOn its face, the IRPA permits detention pending deportation on security grounds. In reality, however, a release from detention may be difficult to obtain. The Federal Court suggested that Mr. Almrei “holds the key to his release”: Almrei v. Canada (Minister of Citizenship and Immigration), [2004] 4 F.C.R. 327, 2004 FC 420, at para. 138. But voluntary departure may be impossible. A person named in a certificate of inadmissibility may have nowhere to go. Other countries may assume such a person to be a terrorist and are likely to refuse entry, or the person may fear torture on his or her return. Deportation may fail for the same reasons, despite the observation that “[i]n our jurisdiction, at this moment, deportation to torture remains a possibility” in exceptional circumstances: Almrei, 2005 FCA 54, at para. 127. The only realistic option may be judicial release.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14612,7 +14612,7 @@ "text": "In the case of a permanent resident, detention is continued if the judge is satisfied that the person “continues to be a danger to national security or to the safety of any person, or is unlikely to appear at a proceeding or for removal”: s. 83(3). The ministers bear the initial burden of establishing that these criteria are met: Charkaoui (Re), [2004] 1 F.C.R. 528, 2003 FC 882, at para. 36. In the case of a foreign national, release may be granted if the judge is “satisfied that the foreign national will not be removed from Canada within a reasonable time and that the release will not pose a danger to national security or to the safety of any person”: s. 84(2). Unlike s. 83(3), s. 84(2) places the onus on the detainee: see Ahani v. Canada (Minister of Citizenship and Immigration) (2000), 24 Admin. L.R. (3d) 171 (F.C.A.).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14630,7 +14630,7 @@ "text": "Courts thus far have understood these provisions to set a high standard for release. In interpreting the predecessor to s. 84(2) under the Immigration Act, the Federal Court of Appeal held that judicial release “cannot be an automatic or easy thing to achieve”, and that it “is not to be routinely obtained”: Ahani, at para. 13. At the same time, courts have read the provision as allowing the judge to inquire whether terms and conditions could make the release safe. This is an invitation that Federal Court judges have rightly accepted: Harkat v. Canada (Minister of Citizenship and Immigration) [2007] 1 F.C.R. 321, 2006 FC 628, at para. 82; Almrei v. Canada (Minister of Citizenship and Immigration) (2005), 270 F.T.R. 1, 2005 FC 1645, at paras. 419-26. Likewise, when reviewing the detention of a permanent resident under s. 83(3), judges have examined the context that would surround release in order to determine whether the person would pose a security risk: Charkaoui (Re), 2005 FC 248, at paras. 71-73.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14648,7 +14648,7 @@ "text": "The cases at bar illustrate the difficulty that may be encountered in seeking release from a detention imposed under the IRPA . At the time of writing, Mr. Almrei, a foreign national, has been detained for over five years. He cannot be deported until the Minister issues an opinion that he constitutes a danger to the public. But two “danger opinions” have already been quashed by the Federal Court, the last one in March 2005. The Minister has yet to issue a new one. In dismissing Mr. Almrei’s application for judicial release, Layden-Stevenson J. held that Mr. Almrei had established that his removal was not imminent, was not a “done deal” and would not occur within a reasonable time (para. 272). However, she held that she was compelled to keep him in detention because she found that his release would pose a danger to national security under s. 84(2): Almrei, 2005 FC 1645. Mr. Almrei argues that as far as he is concerned, his detention is indefinite.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14666,7 +14666,7 @@ "text": "Mr. Harkat has been released from detention, but remains under house arrest and continuous surveillance by the Canada Border Services Agency (“CBSA”) and the RCMP by virtue of an order by Dawson J. He must at all times wear an electronic monitoring device and obtain the CBSA’s permission before leaving his house. He must at all times be under the supervision of either his wife or his mother-in-law. Access to his residence is restricted to individuals who have posted sureties and to Mr. Harkat’s legal counsel, as well as to emergency, fire, police and health care professionals. The CBSA is permitted to intercept all telephone and oral communications between Mr. Harkat and any third party. Mr. Harkat is forbidden to use any cellular phone or any computer with Internet connectivity. Breach of any of the numerous conditions in Dawson J.’s order would lead to automatic rearrest; however, these conditions are subject to ongoing review and amendment. The government is attempting to deport him to Algeria; whether this is possible may depend on the outcome of legal processes that are still pending.\n\nMr. Charkaoui has been released from detention under conditions that are somewhat less onerous: Charkaoui (Re), 2005 FC 248, at para. 86. These conditions have a serious impact on his liberty, and he remains in jeopardy of being rearrested for a breach of his conditions. But the conditions are subject to ongoing review and have been amended several times subsequent to his release. More legal avenues remain to be explored. Whether the government will seek to deport Mr. Charkaoui or detain him anew may depend on the outcome of his application for protection and the determination of the reasonableness of his certificate.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14684,7 +14684,7 @@ "text": "It 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. The next question is whether this violates s. 7 or s. 12 based on the applicable legal principles.\n\nThis Court has previously considered the possibility of indefinite detention in the criminal context. In Lyons, a majority of the Court held that “dangerous offender” legislation allowing for indefinite detention did not constitute cruel and unusual treatment or punishment within the meaning of s. 12 of the Charter because the statutory scheme includes a parole process that “ensures that incarceration is imposed for only as long as the circumstances of the individual case require” (p. 341, per La Forest J.). It is true that a judge can impose the dangerous offender designation only on a person who has been convicted of a serious personal injury offence; this Court indicated that a sentence of indeterminate detention, applied with respect to a future crime or a crime that had already been punished, would violate s. 7 of the Charter (pp. 327-28, per La Forest J.). But the use in criminal law of indeterminate detention as a tool of sentencing — serving both a punitive and a preventive function — does not establish the constitutionality of preventive detention measures in the immigration context.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14702,7 +14702,7 @@ "text": "The principles underlying Lyons must be adapted in the case at bar to the immigration context, which requires a period of time for review of the named person’s right to remain in Canada. Drawing on them, I conclude that the s. 7 principles of fundamental justice and the s. 12 guarantee of freedom from cruel and unusual treatment require that, where a person is detained or is subject to onerous conditions of release for an extended period under immigration law, the detention or the conditions must be accompanied by a meaningful process of ongoing review that takes into account the context and circumstances of the individual case. Such persons must have meaningful opportunities to challenge their continued detention or the conditions of their release.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14720,7 +14720,7 @@ "text": "The type of process required has been explored in cases involving analogous situations. In Sahin, Rothstein J. had occasion to examine a situation of ongoing detention (for reasons unrelated to national security) under the Immigration Act. He concluded that “what amounts to an indefinite detention for a lengthy period of time may, in an appropriate case, constitute a deprivation of liberty that is not in accordance with the principles of fundamental justice” (p. 229) and held that ongoing detention under the Immigration Act could be constitutional if it resulted from the weighing of a number of factors (at pp. 231-32): The following list, which, of course, is not exhaustive of all considerations, seems to me to at least address the more obvious [considerations]. Needless to say, the considerations relevant to a specific case, and the weight to be placed upon them, will depend upon the circumstances of the case. (1) Reasons for the detention, i.e. is the applicant considered a danger to the public or is there a concern that he would not appear for removal. I would think that there is a stronger case for continuing a long detention when an individual is considered a danger to the public. (2) Length of time in detention and length of time detention will likely continue. If an individual has been held in detention for some time as in the case at bar, and a further lengthy detention is anticipated, or if future detention time cannot be ascertained, I would think that these facts would tend to favour release. (3) Has the applicant or the respondent caused any delay or has either not been as diligent as reasonably possible. Unexplained delay and even unexplained lack of diligence should count against the offending party.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14738,7 +14738,7 @@ "text": "(4) The availability, effectiveness and appropriateness of alternatives to detention such as outright release, bail bond, periodic reporting, confinement to a particular location or geographic area, the requirement to report changes of address or telephone numbers, detention in a form that could be less restrictive to the individual, etc. A consideration that I think deserves significant weight is the amount of time that is anticipated until a final decision, determining, one way or the other, whether the applicant may remain in Canada or must leave.\n\nFactors regarding release are considered in another part of the IRPA and the accompanying Immigration and Refugee Protection Regulations, SOR/2002-227 (“IRP Regulations”). When a non-citizen not named in a certificate is detained because he or she is inadmissible and also is a danger to the public or is unlikely to appear for examination, the non-citizen is entitled to detention reviews before the Immigration and Refugee Board: IRPA , ss. 55 to 57 . In determining whether the non-citizen should be held or released, the Board must take into account “prescribed factors”: (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 (s. 58 IRPA and r. 248 IRP Regulations).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14756,7 +14756,7 @@ "text": "I conclude that extended periods of detention under the certificate provisions of the IRPA do not violate ss. 7 and 12 of the Charter if accompanied by a process that provides regular opportunities for review of detention, taking into account all relevant factors, including the following: (a) Reasons for Detention\n\nThe criteria for signing a certificate are “security, violating human or international rights, serious criminality or organized criminality” (s. 77). Detention pursuant to a certificate is justified on the basis of a continuing threat to national security or to the safety of any person. While the criteria for release under s. 83 of the IRPA also include the likelihood that a person will appear at a proceeding or for removal, a threat to national security or to the safety of a person is a more important factor for the purpose of justifying continued detention. The more serious the threat, the greater will be the justification for detention. (b) Length of Detention", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14774,7 +14774,7 @@ "text": "The length of the detention to date is an important factor, both from the perspective of the individual and from the perspective of national security. The longer the period, the less likely that an individual will remain a threat to security: “The imminence of danger may decline with the passage of time”: Charkaoui (Re), 2005 FC 248, at para. 74. Noël J. concluded that Mr. Charkaoui could be released safely from detention because his long period of detention had cut him off from whatever associations with extremist groups he may have had. Likewise, in Mr. Harkat’s case, Dawson J. based her decision to release Mr. Harkat in part on the fact that the long period of detention meant that “his ability to communicate with persons in the Islamic extremist network has been disrupted”: Harkat, 2006 FC 628, at para. 86.\n\nA longer period of detention would also signify that the government would have had more time to gather evidence establishing the nature of the threat posed by the detained person. While the government’s evidentiary onus may not be heavy at the initial detention review (see above, at para. 93), it must be heavier when the government has had more time to investigate and document the threat. (c) Reasons for the Delay in Deportation", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14792,7 +14792,7 @@ "text": "When reviewing detentions pending deportation, judges have assessed whether the delays have been caused by the detainees or the government: Sahin, at p. 231. In reviewing Mr. Almrei’s application for release, the Federal Court of Appeal stated that a reviewing judge could “discount, in whole or in part, the delay resulting from proceedings resorted to by an applicant that have the precise effect of preventing compliance by the Crown with the law within a reasonable time”: Almrei, 2005 FCA 54, at para. 58; see also Harkat, 2006 FC 628, at para. 30. Recourse by the government or the individual to applicable provisions of the IRPA that are reasonable in the circumstances and recourse by the individual to reasonable Charter challenges should not count against either party. On the other hand, an unexplained delay or lack of diligence should count against the offending party. (d) Anticipated Future Length of Detention\n\nIf there will be a lengthy detention before deportation or if the future detention time cannot be ascertained, this is a factor that weighs in favour of release. (e) Availability of Alternatives to Detention\n\nStringent release conditions, such as those imposed on Mr. Charkaoui and Mr. Harkat, seriously limit individual liberty. However, they are less severe than incarceration. Alternatives to lengthy detention pursuant to a certificate, such as stringent release conditions, must not be a disproportionate response to the nature of the threat.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14810,7 +14810,7 @@ "text": "In other words, there must be detention reviews on a regular basis, at which times the reviewing judge should be able to look at all factors relevant to the justice of continued detention, including the possibility of the IRPA ’s detention provisions being misused or abused. Analogous principles apply to extended periods of release subject to onerous or restrictive conditions: these conditions must be subject to ongoing, regular review under a review process that takes into account all the above factors, including the existence of alternatives to the conditions.\n\nDo the provisions for review of detention under the IRPA ’s certificate scheme satisfy these requirements? To answer this question, we must examine ss. 83(3) and 84(2) in greater detail.\n\nSection 84(2) governs the release of foreign nationals. It requires the judge to consider whether the “release” of the detainee would pose a danger to security. This implies that the judge can consider terms and conditions that would neutralize the danger. The judge, if satisfied that the danger no longer exists or that it can be neutralized by conditions, may order the release.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14828,7 +14828,7 @@ "text": "Section 83(3), which applies to permanent residents, has a slightly different wording. It requires the judge to consider not whether the release would pose a danger as under s. 84(2), but whether the permanent resident continues to be a danger. An issue may arise as to whether this difference in wording affects the ability of the judge to fashion conditions and hence to order conditional release. In my view, there is no practical difference between saying a person’s release would be a danger and saying that the person is a danger. I therefore read s. 83(3), like s. 84(2), as enabling the judge to consider whether any danger attendant on release can be mitigated by conditions.\n\nOn this basis, I conclude that for both foreign nationals and permanent residents, the IRPA ’s certificate scheme provides a mechanism for review of detention, which permits the reviewing judge to fashion conditions that would neutralize the risk of danger upon release, and hence to order the release of the detainee.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14846,7 +14846,7 @@ "text": "Reviewing judges have also developed a practice of periodic review in connection with release procedures: Charkaoui (Re), 2005 FC 248, at para. 86. In the immigration context, such periodic reviews must be understood to be required by ss. 7 and 12 of the Charter . The Federal Court of Appeal has suggested that once a foreign national has brought an application for release under s. 84(2), he or she cannot bring a new application except on the basis of (i) new evidence or (ii) a material change in circumstances since the previous application: Almrei, 2005 FCA 54; see also, Ahani, at paras. 14-15. Such an interpretation would lead to a holding that s. 84(2) is inconsistent with ss. 7 and 12; however, since s. 84(2) has already been found to infringe s. 9 and cannot be saved under s. 1, it is not necessary to decide this issue.\n\nIn summary, the IRPA , interpreted in conformity with the Charter , permits robust ongoing judicial review of the continued need for and justice of the detainee’s detention pending deportation. On this basis, I conclude that extended periods of detention pending deportation under the certificate provisions of the IRPA do not violate s. 7 or s. 12 of the Charter , provided that reviewing courts adhere to the guidelines set out above. Thus, the IRPA procedure itself is not unconstitutional on this ground. However, 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 .", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14864,7 +14864,7 @@ "text": "These conclusions are consistent with English and American authority. Canada, it goes without saying, is not alone in facing the problem of detention in the immigration context in situations where deportation is difficult or impossible. Courts in the United Kingdom and the United States have suggested that detention in this context can be used only during the period where it is reasonably necessary for deportation purposes: R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.); Zadvydas.\n\nA case raising similar issues is the decision of the House of Lords in A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56 (“Re A”). This was an appeal brought by nine foreign nationals who were suspected of involvement in terrorism, but were not charged with any crime. The United Kingdom government sought to deport them, but in most cases this was impossible due to a risk of torture. So most of the individuals were detained at Belmarsh Prison under s. 23 of the Anti-terrorism, Crime and Security Act 2001 (U.K.), 2001, c. 24. This provision empowered the government to detain suspected international terrorists under the provisions governing detention pending deportation, despite the fact that removal from the United Kingdom was temporarily or indefinitely prevented, in derogation from art. 5 of the European Convention on Human Rights: see Chahal.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14882,7 +14882,7 @@ "text": "The government claimed that this derogation was necessary to combat the national security threat posed by Al-Qaeda terrorists. The House of Lords, by a majority of 8 to 1, accepted that Al-Qaeda terrorism represented a serious threat to the life of the nation, but seven of the eight Lords who accepted this premise nevertheless concluded that s. 23 was not strictly required by the exigencies of the situation. These same seven Lords also concluded that s. 23 was incompatible with art. 14 of the European Convention on Human Rights, because of the way it discriminated between nationals and non-nationals. The derogation permitting permanent detention of non-nationals treated them more harshly than nationals. Absent the possibility of deportation, it lost its character as an immigration provision, and hence constituted unlawful discrimination.\n\nThe finding in Re A of breach of the detention norms under the European Convention on Human Rights was predicated on the U.K. Act’s authorization of permanent detention. The IRPA , unlike the U.K. legislation under consideration in Re A, does not authorize indefinite detention and, interpreted as suggested above, provides an effective review process that meets the requirements of Canadian law.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14900,7 +14900,7 @@ "text": "The fairness of the detention review procedure arises as an independent issue. I concluded above that this procedure, like the certificate determination procedure, denies the right to a fair hearing and does so in a way that does not minimally impair the detainee’s rights. For the reasons given earlier, Parliament must therefore revisit the provisions for detention review in order to meaningfully protect the procedural rights of detainees. C. Do the Certificate and Detention Review Procedures Discriminate Between Citizens and Non-Citizens, Contrary to Section 15 of the Charter , and if so, Is the Discrimination Justified Under Section 1 of the Charter ?\n\nThe appellant Mr. Charkaoui argues that the IRPA certificate scheme discriminates against non‑citizens, contrary to s. 15(1) of the Charter . However, s. 6 of the Charter specifically allows for differential treatment of citizens and non‑citizens in deportation matters: only citizens are accorded the right to enter, remain in and leave Canada (s. 6(1)). A deportation scheme that applies to non‑citizens, but not to citizens, does not, for that reason alone, violate s. 15 of the Charter : Chiarelli.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14918,7 +14918,7 @@ "text": "It is argued that while this is so, there are two ways in which the IRPA could, in some circumstances, result in discrimination. First, detention may become indefinite as deportation is put off or becomes impossible, for example because there is no country to which the person can be deported. Second, the government could conceivably use the IRPA not for the purpose of deportation, but to detain the person on security grounds. In both situations, the source of the problem is that the detention is no longer related, in effect or purpose, to the goal of deportation. In Re A, the legislation considered by the House of Lords expressly provided for indefinite detention; this was an important factor leading to the majority’s holding that the legislation went beyond the concerns of immigration legislation and thus wrongfully discriminated between nationals and non-nationals: paras. 54, 81, 134, 157-58, 180 and 229.\n\nEven though the detention of some of the appellants has been long — indeed, Mr. Almrei’s continues — the record on which we must rely does not establish that the detentions at issue have become unhinged from the state’s purpose of deportation. More generally, the answer to these concerns lies in an effective review process that permits the judge to consider all matters relevant to the detention, as discussed earlier in these reasons.\n\nI conclude that a breach of s. 15 of the Charter has not been established. D. Are the IRPA Certificate Provisions Inconsistent With the Constitutional Principle of the Rule of Law?", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14936,7 +14936,7 @@ "text": "The appellant Mr. Charkaoui claims that the unwritten constitutional principle of the rule of law is infringed by two aspects of the IRPA scheme: the unavailability of an appeal of the designated judge’s determination that the certificate is reasonable; and the provision in s. 82 for the issuance of an arrest warrant by the executive (in the case of a permanent resident) or for mandatory arrest without a warrant following an executive decision (in the case of a foreign national).\n\nThe rule of law incorporates a number of themes. Most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily: Roncarelli v. Duplessis, [1959] S.C.R. 121; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721, at p. 748-49. It requires the creation and maintenance of an actual order of positive laws: Reference re Manitoba Language Rights. And it is linked to the principle of judicial independence: Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island.\n\nMr. Charkaoui’s claim is based not on any of these themes, but on the content of the IRPA . But as this Court held in British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473, 2005 SCC 49, “it is difficult to conceive of how the rule of law could be used as a basis for invalidating legislation . . . based on its content” (para. 59). Even if this dictum leaves room for exceptions, Mr. Charkaoui has not established that the IRPA should be one of them.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14954,7 +14954,7 @@ "text": "First, Mr. Charkaoui argues that the rule of law is violated by the unavailability of an appeal of the judge’s determination of the reasonableness of the certificate. But there is no constitutional right to an appeal (Kourtessis v. M.N.R., [1993] 2 S.C.R. 53); nor can such a right be said to flow from the rule of law in this context. The Federal Court is a superior court, not an administrative tribunal: Federal Courts Act , R.S.C. 1985, c. F‑7, s. 4 . Federal Court judges, when reviewing certificates under the IRPA , have all the powers of Federal Court judges and exercise their powers judicially. Moreover, the Federal Court of Appeal has reinforced the legality of the process by holding that it is appropriate to circumvent the s. 80(3) privative clause where the constitutionality of legislation is challenged (Charkaoui (Re), 2004 FCA 421, at paras. 47‑50) or where the named person alleges bias on the part of the designated judge (Zündel, Re (2004), 331 N.R. 180, 2004 FCA 394).\n\nSecond, Mr. Charkaoui argues that the rule of law is violated by the provision for arrest under a warrant issued by the executive (in the case of a permanent resident) or for automatic detention without a warrant (in the case of a foreign national). But the rule of law does not categorically prohibit automatic detention or detention on the basis of an executive decision. The constitutional protections surrounding arrest and detention are set out in the Charter , and it is hard to see what the rule of law could add to these provisions. IV. Conclusion\n\nThe scheme set up under Division 9 of Part 1 of the IRPA suffers from two defects that are inconsistent with the Charter .", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14972,7 +14972,7 @@ "text": "The first is that s. 78(g) allows for the use of evidence that is never disclosed to the named person without providing adequate measures to compensate for this non-disclosure and the constitutional problems it causes. It is clear from approaches adopted in other democracies, and in Canada itself in other security situations, that solutions can be devised that protect confidential security information and at the same time are less intrusive on the person’s rights. It follows that the IRPA ’s procedure for the judicial confirmation of certificates and review of detention violates s. 7 of the Charter and has not been shown to be justified under s. 1 of the Charter . I would declare the procedure to be inconsistent with the Charter , and hence of no force or effect.\n\nHowever, in order to give Parliament time to amend the law, I would suspend this declaration for one year from the date of this judgment. If the government chooses to go forward with the proceedings to have the reasonableness of Mr. Charkaoui’s certificate determined during the one-year suspension period, the existing process under the IRPA will apply. After one year, the certificates of Mr. Harkat and Mr. Almrei (and of any other individuals whose certificates have been deemed reasonable) will lose the “reasonable” status that has been conferred on them, and it will be open to them to apply to have the certificates quashed. If the government intends to employ a certificate after the one-year delay, it will need to seek a fresh determination of reasonableness under the new process devised by Parliament. Likewise, any detention review occurring after the delay will be subject to the new process.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -14990,7 +14990,7 @@ "text": "The second defect is found in s. 84(2) of the IRPA , which denies a prompt hearing to foreign nationals by imposing a 120-day embargo, after confirmation of the certificate, on applications for release. Counsel for the ministers submitted in oral argument that if this Court were to find that s. 84(2) violates the Charter , the appropriate remedy would be to strike s. 84(2) and read foreign nationals into s. 83. This is a good first step, but it does not provide a complete solution, since s. 83 deals with detention review only until the certificate has been determined to be reasonable, whereas s. 84(2) deals with detention review after it has been determined to be reasonable. Striking s. 84(2) would therefore leave no provision for review of detention of foreign nationals once the certificate has been deemed reasonable.\n\nAccordingly, I conclude that the appropriate remedy is to strike s. 84(2) as well as to read foreign nationals into s. 83 and to strike the words “until a determination is made under subsection 80(1)” from s. 83(2).", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -15008,7 +15008,7 @@ "text": "I would allow the appeals with costs to the appellants, and answer the constitutional questions as follows: 1. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the principle of judicial independence protected by: (a) s. 96 of the Constitution Act, 1867 , or (b) the Preamble to the Constitution Act, 1867 ? Answer: No. 2. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, offend the constitutional principle of the rule of law? Answer: No. 3. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 7 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 4. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 5. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 9 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 6. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 7. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 10 of the Canadian Charter of Rights and Freedoms ? Answer: Yes. 8.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -15026,7 +15026,7 @@ "text": "If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: No. 9. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 12 of the Canadian Charter of Rights and Freedoms ? Answer: No. 10. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question. 11. Do ss. 33 and 77 to 85 of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 , in whole or in part or through their combined effect, infringe s. 15 of the Canadian Charter of Rights and Freedoms ? Answer: No. 12. If so, is the infringement a reasonable limit prescribed by law as can be demonstrably justified in a free and democratic society under s. 1 of the Canadian Charter of Rights and Freedoms ? Answer: It is unnecessary to answer this question.", "current_to": "2007-02-23", "last_amended": "", - "history": "Also reported: [2007] 1 SCR 350", + "history": "[2007] 1 SCR 350", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/2345/index.do" }, { @@ -15044,7 +15044,7 @@ "text": "The Court — In this appeal we hold that Suresh is entitled to a new deportation hearing under the Immigration Act, R.S.C. 1985, c. I-2. Suresh came to Canada from Sri Lanka in 1990. He was recognized as a Convention refugee in 1991 and applied for landed immigrant status. In 1995 the government detained him and started proceedings to deport him to Sri Lanka on grounds he was a member and fundraiser for the Liberation Tigers of Tamil Eelam (“LTTE”), an organization alleged to engage in terrorist activity in Sri Lanka. Suresh challenged the order for his deportation on various grounds of substance and procedure. In these reasons we examine the Immigration Act and the Canadian Charter of Rights and Freedoms , and find that deportation to face torture is generally unconstitutional and that some of the procedures followed in Suresh’s case did not meet the required constitutional standards. We therefore conclude that Suresh is entitled to a new hearing.\n\nThe appeal requires us to consider a number of issues: the standard to be applied in reviewing a ministerial decision to deport; whether the Charter precludes deportation to a country where the refugee faces torture or death; whether deportation on the basis of mere membership in an alleged terrorist organization unjustifiably infringes the Charter rights of free expression and free association; whether “terrorism” and “danger to the security of Canada” are unconstitutionally vague; and whether the deportation scheme contains adequate procedural safeguards to ensure that refugees are not expelled to a risk of torture or death.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15062,7 +15062,7 @@ "text": "The issues engage concerns and values fundamental to Canada and indeed the world. On the one hand stands the manifest evil of terrorism and the random and arbitrary taking of innocent lives, rippling out in an ever-widening spiral of loss and fear. Governments, expressing the will of the governed, need the legal tools to effectively meet this challenge.\n\nOn the other hand stands the need to ensure that those legal tools do not undermine values that are fundamental to our democratic society — liberty, the rule of law, and the principles of fundamental justice — values that lie at the heart of the Canadian constitutional order and the international instruments that Canada has signed. In the end, it would be a Pyrrhic victory if terrorism were defeated at the cost of sacrificing our commitment to those values. Parliament’s challenge is to draft laws that effectively combat terrorism and conform to the requirements of our Constitution and our international commitments.\n\nWe conclude that to deport a refugee to face a substantial risk of torture would generally violate s. 7 of the Charter . The Minister of Citizenship and Immigration must exercise her discretion to deport under the Immigration Act accordingly. Properly applied, the legislation conforms to the Charter . We reject the arguments that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague and that ss. 19 and 53(1)(b) of the Act violate the Charter guarantees of free expression and free association, and conclude that the Act’s impugned procedures, properly followed, are constitutional. We believe these findings leave ample scope to Parliament to adopt new laws and devise new approaches to the pressing problem of terrorism.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15080,7 +15080,7 @@ "text": "Applying these conclusions, we find that the appellant Suresh made a prima facie case showing a substantial risk of torture if deported to Sri Lanka, and that his hearing did not provide the procedural safeguards required to protect his right not to be expelled to a risk of torture or death. This means that the case must be remanded to the Minister for reconsideration. The immediate result is that Suresh will remain in Canada until his new hearing is complete. Parliament’s scheme read in light of the Canadian Constitution requires no less. I. Facts and Judicial Proceedings\n\nThe appellant, Manickavasagam Suresh, was born in 1955. He is a Sri Lankan citizen of Tamil descent. Suresh entered Canada in October 1990, and was recognized as a Convention refugee by the Refugee Division of the Immigration and Refugee Board in April 1991. Recognition as a Convention refugee has a number of legal consequences; the one most directly relevant to this appeal is that, under s. 53(1) of the Immigration Act, generally the government may not return (“refouler”) a Convention refugee “to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion”.\n\nIn the summer of 1991, the appellant applied for landed immigrant status in Canada. His application was not finalized because, in late 1995, the Solicitor General of Canada and the Minister of Citizenship and Immigration commenced proceedings to deport Suresh to Sri Lanka on security grounds.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15098,7 +15098,7 @@ "text": "The first step in the procedure was a certificate under s. 40.1 of the Immigration Act alleging that Suresh was inadmissible to Canada on security grounds. The Solicitor General and the Minister filed the certificate with the Federal Court of Canada on October 17, 1995, and Suresh was detained the following day.\n\nThe s. 40.1 certificate was based on the opinion of the Canadian Security Intelligence Service (“CSIS”) that Suresh is a member of the LTTE, an organization that, according to CSIS, is engaged in terrorist activity in Sri Lanka and functions in Canada under the auspices of the World Tamil Movement (“WTM”). LTTE supports the cause of Tamils in the ongoing Sri Lankan civil war. The struggle is a protracted and bitter one. The Tamils are in rebellion against the democratically elected government of Sri Lanka. Their grievances are deep-rooted, and atrocities appear to be commonplace on both sides. The conflict has its roots in measures taken by a past government which, in the view of the Tamil minority, deprived it of basic linguistic, cultural and political rights. Subsequent governments have made attempts to accommodate these grievances, find a political solution, and re-establish civilian controls on the security and defence establishments, but a solution has yet to be found.\n\nHuman rights reporting on the practices of the Sri Lanka security forces indicates that the use of torture is widespread, particularly against persons suspected of membership in the LTTE. In a report dated 2001, Amnesty International cites frequent incidents of torture by the police and army, including a report that five labourers arrested on suspicion of involvement with the LTTE were tortured by police. One of them died apparently as a result of the torture.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15116,7 +15116,7 @@ "text": "The s. 40.1 certificate was referred to the Federal Court for determination “whether the certificate filed by the Minister and the Solicitor General is reasonable on the basis of the evidence and information available” as required by s. 40.1(4)(d) — the second step in the deportation procedure. Pursuant to s. 40.1(5), the designated judge is entitled to receive and consider any evidence the judge “sees fit, whether or not the evidence or information is or would be admissible in a court of law”.\n\nIn August 1997, after 50 days of hearings, Teitelbaum J. upheld the s. 40.1 certificate, finding it “reasonable” under s. 40.1(4)(d) of the Act: (1997), 140 F.T.R. 88. Specifically, Teitelbaum J. found that: (1) Suresh had been a member of the LTTE since his youth and is now (or was at the time of Teitelbaum J.’s consideration) a member of the LTTE executive; (2) the WTM is part of the LTTE or at least an organization that supports the activities of the LTTE; (3) Suresh obtained refugee status “by wilful misrepresentation of facts” and lacks credibility; (4) there are reasonable grounds to believe the LTTE has committed terrorist acts; and (5) Tamils arrested by Sri Lankan authorities are badly mistreated and in a number of cases the mistreatment bordered on torture.\n\nA deportation hearing followed — the third step in the deportation procedure. The adjudicator found no reasonable grounds to conclude Suresh was directly engaged in terrorism under s. 19(1)(f)(ii), but held that he should be deported on grounds of membership in a terrorist organization under ss. 19(1)(f)(iii)(B) and 19(1)(e)(iv)(C).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15134,7 +15134,7 @@ "text": "On the same day, September 17, 1997, the Minister took the fourth step in the deportation process, notifying Suresh that she was considering issuing an opinion declaring him to be a danger to the security of Canada under s. 53(1)(b) of the Act, which permits the Minister to deport a refugee on security grounds even where the refugee’s “life or freedom” would be threatened by the return. In response to the Minister’s notification, Suresh submitted written arguments and documentary evidence, including reports indicating the incidence of torture, disappearances, and killings of suspected members of LTTE.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15152,7 +15152,7 @@ "text": "Donald Gautier, an immigration officer for Citizenship and Immigration Canada, considered the submissions and recommended that the Minister issue an opinion under s. 53(1)(b) that Suresh constituted a danger to the security of Canada. Noting Suresh’s links to LTTE, he stated that “[t]o allow Mr. Suresh to remain in this country and continue his activities runs counter to Canada’s international commitments in the fight against terrorism”. At the same time, Mr. Gautier acknowledged that Mr. Suresh “is not known to have personally committed any acts of violence either in Canada or Sri Lanka” and that his activities on Canadian soil were “non-violent” in nature. Gautier found that Suresh faced a risk on returning to Sri Lanka, but this was difficult to assess; might be tempered by his high profile; and was counterbalanced by Suresh’s terrorist activities in Canada. He concluded that, “on balance, there are insufficient humanitarian and compassionate considerations present to warrant extraordinary consideration”. Accordingly, on January 6, 1998, the Minister issued an opinion that Suresh constituted a danger to the security of Canada and should be deported pursuant to s. 53(1)(b). Suresh was not provided with a copy of Mr. Gautier’s memorandum, nor was he provided an opportunity to respond to it orally or in writing. No reasons are required under s. 53(1)(b) of the Immigration Act and none were given.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15170,7 +15170,7 @@ "text": "Suresh applied to the Federal Court for judicial review, alleging that the Minister’s decision was unreasonable; that the procedures under the Act, which did not require an oral hearing and independent decision-maker, were unfair; and that the Act unconstitutionally violated ss. 7 and 2 of the Charter . McKeown J. (1999), 65 C.R.R. (2d) 344, dismissed the application on all grounds. In his view, the Minister’s decision was not unreasonable and the Act was constitutional.\n\nOn the s. 7 challenge, McKeown J. found that the Minister, weighing the risk of exposing Suresh to torture against the danger that Suresh posed to the security of Canada, had satisfied the requirements of fundamental justice. McKeown J. acknowledged that the s. 7 Charter analysis should be informed by international law, and by the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, Can. T.S. 1987 No. 36 (“CAT”), in particular. However, the CAT applies only where there are “substantial grounds” to believe that the person in question would be in danger of being tortured. Suresh had not met this test he held, in part because he had not submitted to the Minister a personal statement outlining why he believed he was at risk. McKeown J. concluded that the appellant’s expulsion would not “shock the conscience” of Canadians, the test for unconstitutionality under s. 7 of the Charter .", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15188,7 +15188,7 @@ "text": "On the s. 2 challenge, McKeown J. found that Suresh’s activities as a fundraiser could not be considered “expression” under s. 2(b), since those activities were conducted in the service of a violent organization. He also found that Suresh’s activities were not protected under s. 2(d), since the association in question existed to commit acts of violence. As to Suresh’s vagueness arguments, McKeown J. held that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague. Accordingly, McKeown J. dismissed the application.\n\nSuresh appealed to the Federal Court of Appeal. It too dismissed his application. Robertson J.A., for the court, held that the right under international law to be free from torture was limited by a country’s right to expel those who pose a security risk: [2000] 2 F.C. 592. He held, at paras. 31-32, that the Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (“Refugee Convention”), permits derogation from the prohibition against deportation to torture and that, in any event, Canadian statutory law supersedes customary international law. He agreed with McKeown J. that fundraising to support terrorist violence was not protected under s. 2. He also agreed that the Immigration Act procedures were adequate; in particular, no oral hearing was required to assess the risk of torture upon deportation. Finally, he agreed that neither the term “danger to the security of Canada” nor the term “terrorism” is unconstitutionally vague.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15206,7 +15206,7 @@ "text": "Robertson J.A. rejected Suresh’s argument that s. 53(1)(b) of the Act is unconstitutional insofar as it permits the Minister to expel a refugee to torture. He held that while deportation to torture violates s. 7’s guarantee of the right to life, liberty and security of the person, the violation was justified under s. 1. The objective of preventing Canada from becoming a haven for terrorist organizations was pressing and substantial and the deportation provision was a proportionate response to that objective bearing in mind the limitations on the power of deportation, its use as a measure of last resort and Canada’s international obligations to combat terrorism. Expulsion of a refugee who is a danger to the security of Canada would not violate the sense of justice or “shock the conscience” of most Canadians, notwithstanding that the refugee might face torture on return, because Canada would be neither the first nor the last link in the chain of causation leading to torture, but merely an involuntary intermediary.\n\nFinally, Robertson J.A. rejected the alternate argument that s. 53(1)(b), if constitutional, violated Suresh’s s. 7 right to security in its application. The administrative decision to deport Suresh properly considered the risk Suresh posed to Canada, acknowledged the risk of torture Suresh would face upon return to Sri Lanka, noted factors that might reduce the risk, and held that on balance it was outweighed by Canada’s interest in its own security.\n\nSuresh now appeals to this Court. II. Relevant Constitutional and Statutory Provisions", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15224,7 +15224,7 @@ "text": "Canadian Charter of Rights and Freedoms 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. 2. Everyone has the following fundamental freedoms: . . . (b) freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication; . . . (d) freedom of association. 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. Immigration Act, R.S.C. 1985, c. I-2 19. (1) No person shall be granted admission who is a member of any of the following classes: . . . (e) persons who there are reasonable grounds to believe . . . (iv) are members of an organization that there are reasonable grounds to believe will . . . (C) engage in terrorism; (f) persons who there are reasonable grounds to believe . . . (ii) have engaged in terrorism, or (iii) are or were members of an organization that there are reasonable grounds to believe is or was engaged in . . . (B) terrorism, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; 53.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15242,7 +15242,7 @@ "text": "(1) Notwithstanding subsections 52(2) and (3), no person who is determined under this Act or the regulations to be a Convention refugee, nor any person who has been determined to be not eligible to have a claim to be a Convention refugee determined by the Refugee Division on the basis that the person is a person described in paragraph 46.01(1)(a), shall be removed from Canada to a country where the person’s life or freedom would be threatened for reasons of race, religion, nationality, membership in a particular social group or political opinion unless . . . (b) the person is a member of an inadmissible class described in paragraph 19(1)(e), (f), (g), (j), (k) or (l) and the Minister is of the opinion that the person constitutes a danger to the security of Canada; III. Issues\n\nWe propose to consider the issues in the following order: 1. What is the appropriate standard of review with respect to ministerial decisions under s. 53(1)(b) of the Immigration Act? 2. Are the conditions for deportation in the Immigration Act constitutional? (a) Does the Act permit deportation to torture contrary to the Charter ? (b) Are the terms “danger to the security of Canada” and “terrorism” unconstitutionally vague? (c) Does deportation for membership in a terrorist organization unjustifiably violate the Charter guarantees of freedom of expression and freedom of association? 3. Are the procedures for deportation set out in the Immigration Act constitutionally valid? 4. Examining Suresh’s case in light of the conclusions to the foregoing questions, should the Minister’s order be set aside and a new hearing ordered? IV. Analysis 1. Standard of Review", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15260,7 +15260,7 @@ "text": "This appeal involves a consideration of four types of issues: (1) constitutional review of the provisions of the Immigration Act; (2) whether Suresh’s presence in Canada constitutes a danger to national security; (3) whether Suresh faces a substantial risk of torture upon return to Sri Lanka; and (4) whether the procedures used by the Minister under the Act were adequate to protect Suresh’s constitutional rights.\n\nThe issues of the constitutionality of the deportation provisions of the Immigration Act do not involve review of ministerial decision-making. The fourth issue of the adequacy of the procedures under the Act will be considered separately later in these reasons. At this point, our inquiry is into the standard of review to be applied to the second and third issues — the Minister’s decisions on whether Suresh poses a risk to the security of Canada and whether he faces a substantial risk of torture on deportation. The latter was characterized by Robertson J.A. as a constitutional decision and hence requires separate treatment. It is our view that the threshold question is factual, that is whether there is a substantial risk of torture if the appellant is sent back, although this inquiry is mandated by s. 7 of the Charter . The constitutional issue is whether it would shock the Canadian conscience to deport Suresh once a substantial risk of torture has been established. This is when s. 7 is engaged. Since we are ordering a new hearing on procedural grounds, we are not required in this appeal to review the Minister’s decisions on whether Suresh’s presence constitutes a danger to the security of Canada and whether he faces a substantial risk of torture on deportation. However, we offer the following comments to assist courts in future ministerial review.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15278,7 +15278,7 @@ "text": "The trial judge and the Court of Appeal rejected Suresh’s submission that the highest standard of review should apply to the determination of the rights of refugees. Robertson J.A., while inclined to apply a deferential standard of review to whether Suresh constituted a danger to the security of Canada, concluded that the decision could be maintained on any standard. Robertson J.A. went on to state (at paras. 131-36) that while the Act and the Constitution place constraints on the Minister’s exercise of her discretion, these do not extend to a judicially imposed obligation to give particular weight to particular factors. On the question of whether he would face a substantial risk of torture on return, a question that he viewed as constitutional rather than merely one of judicial review, Robertson J.A. did not determine the applicable standard of review, concluding that even on the stringent standard of correctness the Minister’s decision should be upheld.\n\nThe first question is what standard should be adopted with respect to the Minister’s decision that a refugee constitutes a danger to the security of Canada. We agree with Robertson J.A. that the reviewing court should adopt a deferential approach to this question and should set aside the Minister’s discretionary decision if it is patently unreasonable in the sense that it was made arbitrarily or in bad faith, it cannot be supported on the evidence, or the Minister failed to consider the appropriate factors. The court should not reweigh the factors or interfere merely because it would have come to a different conclusion.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15296,7 +15296,7 @@ "text": "This conclusion is mandated by Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, which reviewed the principles for determining the standard of review according to the functional and pragmatic approach. In Pushpanathan, the Court emphasized that the ultimate question is always what the legislature intended. One looks to the language of the statute as well as a number of factors to determine that intention. Here the language of the Act (the Minister must be “of the opinion” that the person constitutes a danger to the security of Canada) suggests a standard of deference. So, on the whole, do the factors to be considered: (1) the presence or absence of a clause negating the right of appeal; (2) the relative expertise of the decision-maker; (3) the purpose of the provision and the legislation generally; and (4) the nature of the question (Pushpanathan, supra, at paras. 29-38).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15314,7 +15314,7 @@ "text": "The first factor suggests that Parliament intended only a limited right of appeal. Although the Minister’s s. 53(1)(b) opinion is not protected by a privative clause, it may only be appealed by leave of the Federal Court, Trial Division (s. 82.1(1)), and that leave decision may not itself be appealed (s. 82.2). The second factor, the relative expertise of the decision-maker, again favours deference. As stated in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, “[t]he fact that the formal decision-maker is the Minister is a factor militating in favour of deference” (para. 59). The Minister, as noted by Lord Hoffmann in Secretary of State for the Home Department v. Rehman, [2001] 3 W.L.R. 877 (H.L.), at para. 62, “has access to special information and expertise in . . . matters [of national security]”. The third factor — the purpose of the legislation — again favours deference. This purpose, as discussed in Pushpanathan, supra, at para. 73, is to permit a “humanitarian balance” of various interests — “the seriousness of the danger posed to Canadian society” on the one hand, and “the danger of persecution upon refoulement”on the other. Again, the Minister is in a superior position to a court in making this assessment. Finally, the nature of the case points to deference. The inquiry is highly fact-based and contextual. As in Baker, supra, at para. 61, the s. 53(1)(b) danger opinion “involves a considerable appreciation of the facts of that person’s case, and is not one which involves the application or interpretation of definitive legal rules”, suggesting it merits a wide degree of deference.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15332,7 +15332,7 @@ "text": "These factors suggest that Parliament intended to grant the Minister a broad discretion in issuing a s. 53(1)(b) opinion, reviewable only where the Minister makes a patently unreasonable decision. It is true that the question of whether a refugee constitutes a danger to the security of Canada relates to human rights and engages fundamental human interests. However, it is our view that a deferential standard of ministerial review will not prevent human rights issues from being fully addressed, provided proper procedural safeguards are in place and provided that any decision to deport meets the constitutional requirements of the Charter .\n\nThe House of Lords has taken the same view in Rehman, supra. Lord Hoffmann, following the events of September 11, 2001, added the following postscript to his speech (at para. 62): I wrote this speech some three months before the recent events in New York and Washington. They are a reminder that in matters of national security, the cost of failure can be high. This seems to me to underline the need for the judicial arm of government to respect the decisions of ministers of the Crown on the question of whether support for terrorist activities in a foreign country constitutes a threat to national security. It is not only that the executive has access to special information and expertise in these matters. It is also that such decisions, with serious potential results for the community, require a legitimacy which can be conferred only by entrusting them to persons responsible to the community through the democratic process. If the people are to accept the consequences of such decisions, they must be made by persons whom the people have elected and whom they can remove. [Emphasis added.]", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15350,7 +15350,7 @@ "text": "It follows that the weighing of relevant factors is not the function of a court reviewing the exercise of ministerial discretion (see, for instance, Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, at p. 607, where Iacobucci J. explained that a reviewing court should not disturb a decision based on a “broad discretion” unless the tribunal has “made some error in principle in exercising its discretion or has exercised its discretion in a capricious or vexatious manner”).\n\nThe Court’s recent decision in Baker, supra, did not depart from this view. Rather, it confirmed that the pragmatic and functional approach should be applied to all types of administrative decisions in recognition of the fact that a uniform approach to the determination of the proper standard of review is preferable, and that there may be special situations where even traditionally discretionary decisions will best be reviewed according to a standard other than the deferential standard which was universally applied in the past to ministerial decisions (see Dagg v. Canada (Minister of Finance), [1997] 2 S.C.R. 403).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15368,7 +15368,7 @@ "text": "The Court specified in Baker, supra, that a nuanced approach to determining the appropriate standard of review was necessary given the difficulty in rigidly classifying discretionary and non-discretionary decisions (paras. 54-55). The Court also made it clear in Baker that its approach “should not be seen as reducing the level of deference given to decisions of a highly discretionary nature” (para. 56) and, moreover, that any ministerial obligation to consider certain factors “gives the applicant no right to a particular outcome or to the application of a particular legal test” (para. 74). To the extent this Court reviewed the Minister’s discretion in that case, its decision was based on the ministerial delegate’s failure to comply with self-imposed ministerial guidelines, as reflected in the objectives of the Act, international treaty obligations and, most importantly, a set of published instructions to immigration officers.\n\nThe passages in Baker referring to the “weight” of particular factors (see paras. 68 and 73-75) must be read in this context. It is the Minister who was obliged to give proper weight to the relevant factors and none other. Baker does not authorize courts reviewing decisions on the discretionary end of the spectrum to engage in a new weighing process, but draws on an established line of cases concerning the failure of ministerial delegates to consider and weigh implied limitations and/or patently relevant factors: see Anisminic Ltd. v. Foreign Compensation Commission, [1969] 2 A.C. 147 (H.L.); Re Sheehan and Criminal Injuries Compensation Board (1974), 52 D.L.R. (3d) 728 (Ont. C.A.); Maple Lodge Farms Ltd. v. Government of Canada, [1982] 2 S.C.R. 2; Dagg, supra, at paras. 111-12, per La Forest J. (dissenting on other grounds).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15386,7 +15386,7 @@ "text": "This standard appropriately reflects the different obligations of Parliament, the Minister and the reviewing court. Parliament’s task is to establish the criteria and procedures governing deportation, within the limits of the Constitution. The Minister’s task is to make a decision that conforms to Parliament’s criteria and procedures as well as the Constitution. The court’s task, if called upon to review the Minister’s decision, is to determine whether the Minister has exercised her decision-making power within the constraints imposed by Parliament’s legislation and the Constitution. If the Minister has considered the appropriate factors in conformity with these constraints, the court must uphold his decision. It cannot set it aside even if it would have weighed the factors differently and arrived at a different conclusion.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15404,7 +15404,7 @@ "text": "This brings us to the question of the standard of review of the Minister’s decision on whether the refugee faces a substantial risk of torture upon deportation. This question is characterized as constitutional by Robertson J.A., to the extent that the Minister’s decision to deport to torture must ultimately conform to s. 7 of the Charter : see Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779, per La Forest J.; and United States v. Burns, [2001] 1 S.C.R. 283, 2001 SCC 7, at para. 32. As mentioned earlier, whether there is a substantial risk of torture if Suresh is deported is a threshold question. The threshold question here is in large part a fact-driven inquiry. It requires consideration of the human rights record of the home state, the personal risk faced by the claimant, any assurances that the claimant will not be tortured and their worth and, in that respect, the ability of the home state to control its own security forces, and more. It may also involve a reassessment of the refugee’s initial claim and a determination of whether a third country is willing to accept the refugee. Such issues are largely outside the realm of expertise of reviewing courts and possess a negligible legal dimension. We are accordingly of the view that the threshold finding of whether Suresh faces a substantial risk of torture, as an aspect of the larger s. 53(1)( b ) opinion, attracts deference by the reviewing court to the Minister’s decision. The court may not reweigh the factors considered by the Minister, but may intervene if the decision is not supported by the evidence or fails to consider the appropriate factors. It must be recognized that the nature of the evidence required may be limited by the nature of the inquiry.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15422,7 +15422,7 @@ "text": "This is consistent with the reasoning of this Court in Kindler, supra, at pp. 836-37, where considerable deference was shown to ministerial decisions involving similar considerations in the context of a constitutional revision, that is in the context of a decision where the s. 7 interest was engaged.\n\nBefore leaving the issue of standard of review, it is useful to underline the distinction between standard of review and the evidence required to establish particular facts in issue. For example, some authors suggest a lower evidentiary standard may govern decisions at entry (under ss. 2 and 19 of the Act) than applies to decisions to deport a landed Convention refugee under s. 53(1)(b): see J. C. Hathaway and C. J. Harvey “Framing Refugee Protection in the New World Disorder” (2001), 34 Cornell Int’l L.J. 257, at p. 288. This does not imply different standards of review. Different administrative decisions involve different factors, stemming from the statutory scheme and the particular issues raised. Yet the same standard of review may apply.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15440,7 +15440,7 @@ "text": "We conclude that in reviewing ministerial decisions to deport under the Act, courts must accord deference to those decisions. If the Minister has considered the correct factors, the courts should not reweigh them. Provided the s. 53(1)(b) decision is not patently unreasonable — unreasonable on its face, unsupported by evidence, or vitiated by failure to consider the proper factors or apply the appropriate procedures — it should be upheld. At the same time, the courts have an important role to play in ensuring that the Minister has considered the relevant factors and complied with the requirements of the Act and the Constitution. 2. Are the Conditions for Deportation in the Immigration Act Constitutional? (a) Does the Act Permit Deportation to Torture Contrary to the Charter ?\n\nSuresh opposes his deportation to Sri Lanka on the ground, among others, that on return he faces a substantial risk of torture. McKeown J. found that Suresh had not shown that he personally would risk torture according to the “substantial grounds” test. His finding seems to conflict with that of the immigration officer who acknowledged “that there is a risk to Mr. Suresh on his return to Sri Lanka”, but concluded that “this is counterbalanced by the serious terrorist activities to which he is a party”. Acting on these findings, the Minister ordered Suresh deported.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15458,7 +15458,7 @@ "text": "Section 53 of the Immigration Act permits deportation “to a country where the person’s life or freedom would be threatened”. The question is whether such deportation violates s. 7 of the Charter . Torture is defined in Article 1 of the CAT as including the unlawful use of psychological or physical techniques to intentionally inflict severe pain and suffering on another, when such pain or suffering is inflicted by or with the consent of public officials. A similar definition of torture may be found in s. 269.1 of the Criminal Code , R.S.C. 1985, c. C-46 .\n\nSection 7 of the Charter guarantees “[e]veryone . . . the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”. It is conceded that “everyone” includes refugees and that deportation to torture may deprive a refugee of liberty, security and perhaps life. The only question is whether this deprivation is in accordance with the principles of fundamental justice. If it is not, s. 7 is violated and, barring justification of the violation under s. 1 of the Charter , deportation to torture is unconstitutional.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15476,7 +15476,7 @@ "text": "The principles of fundamental justice are to be found in “the basic tenets of our legal system”: Burns, supra, at para. 70. “They do not lie in the realm of general public policy but in the inherent domain of the judiciary as guardian of the justice system”: Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486, at p. 503. The relevant principles of fundamental justice are determined by a contextual approach that “takes into account the nature of the decision to be made”: Kindler, supra, at p. 848, per McLachlin J. (as she then was). The approach is essentially one of balancing. As we said in Burns, “[i]t is inherent in the . . . balancing process that the outcome may well vary from case to case depending on the mix of contextual factors put into the balance” (para. 65). Deportation to torture, for example, requires us to consider a variety of factors, including the circumstances or conditions of the potential deportee, the danger that the deportee presents to Canadians or the country’s security, and the threat of terrorism to Canada. In contexts in which the most significant considerations are general ones, it is likely that the balance will be struck the same way in most cases. It would be impossible to say in advance, however, that the balance will necessarily be struck the same way in every case.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15494,7 +15494,7 @@ "text": "The inquiry into the principles of fundamental justice is informed not only by Canadian experience and jurisprudence, but also by international law, including jus cogens. This takes into account Canada’s international obligations and values as expressed in “[t]he various sources of international human rights law — declarations, covenants, conventions, judicial and quasi-judicial decisions of international tribunals, [and] customary norms”: Burns, at paras. 79-81; Reference re Public Service Employee Relations Act (Alta.), [1987] 1 S.C.R. 313, at p. 348, per Dickson C.J. (dissenting); see also Re B.C. Motor Vehicle Act, supra, at p. 512; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pp. 1056-57; R. v. Keegstra, [1990] 3 S.C.R. 697, at p. 750; and Baker, supra.\n\nDetermining whether deportation to torture violates the principles of fundamental justice requires us to balance Canada’s interest in combatting terrorism and the Convention refugee’s interest in not being deported to torture. Canada has a legitimate and compelling interest in combatting terrorism. But it is also committed to fundamental justice. The notion of proportionality is fundamental to our constitutional system. Thus we must ask whether the government’s proposed response is reasonable in relation to the threat. In the past, we have held that some responses are so extreme that they are per se disproportionate to any legitimate government interest: see Burns, supra. We must ask whether deporting a refugee to torture would be such a response.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15512,7 +15512,7 @@ "text": "With these thoughts in mind, we turn to the question of whether the government may, consistent with the principles of fundamental justice, expel a suspected terrorist to face torture elsewhere: first from the Canadian perspective; then from the perspective of the international norms that inform s. 7. (i) The Canadian Perspective\n\nThe inquiry at this stage is whether, viewed from a Canadian perspective, returning a refugee to the risk of torture because of security concerns violates the principles of fundamental justice where the deportation is effected for reasons of national security. A variety of phrases have been used to describe conduct that would violate fundamental justice. The most frequent is conduct that would “‘shoc[k]’ the Canadian conscience” (see Kindler, supra, at p. 852, and Burns, supra, at para. 60). Without resorting to opinion polls, which may vary with the mood of the moment, is the conduct fundamentally unacceptable to our notions of fair practice and justice?", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15530,7 +15530,7 @@ "text": "It can be confidently stated that Canadians do not accept torture as fair or compatible with justice. Torture finds no condonation in our Criminal Code ; indeed the Code prohibits it (see, for example, s. 269.1). The Canadian people, speaking through their elected representatives, have rejected all forms of state-sanctioned torture. Our courts ensure that confessions cannot be obtained by threats or force. The last vestiges of the death penalty were abolished in 1998 and Canada has not executed anyone since 1962: see An Act to amend the National Defence Act and to make consequential amendments to other Acts, S.C. 1998, c. 35. In Burns, the then Minister of Justice, in his decision on the order to extradite the respondents Burns and Rafay, emphasized that “in Canada, Parliament has decided that capital punishment is not an appropriate penalty for crimes committed here, and I am firmly committed to that position” (para. 76). While we would hesitate to draw a direct equation between government policy or public opinion at any particular moment and the principles of fundamental justice, the fact that successive governments and Parliaments have refused to inflict torture and the death penalty surely reflects a fundamental Canadian belief about the appropriate limits of a criminal justice system.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15548,7 +15548,7 @@ "text": "When Canada adopted the Charter in 1982, it affirmed the opposition of the Canadian people to government-sanctioned torture by proscribing cruel and unusual treatment or punishment in s. 12. A punishment is cruel and unusual if it “is so excessive as to outrage standards of decency”: see R. v. Smith, [1987] 1 S.C.R. 1045, at pp. 1072-73, per Lamer J. (as he then was). It must be so inherently repugnant that it could never be an appropriate punishment, however egregious the offence. Torture falls into this category. The prospect of torture induces fear and its consequences may be devastating, irreversible, indeed, fatal. Torture may be meted out indiscriminately or arbitrarily for no particular offence. Torture has as its end the denial of a person’s humanity; this end is outside the legitimate domain of a criminal justice system: see, generally, E. Scarry, The Body in Pain: The Making and Unmaking of the World (1985), at pp. 27-59. Torture is an instrument of terror and not of justice. As Lamer J. stated in Smith, supra, at pp. 1073-74, “some punishments or treatments will always be grossly disproportionate and will always outrage our standards of decency: for example, the infliction of corporal punishment”. As such, torture is seen in Canada as fundamentally unjust.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15566,7 +15566,7 @@ "text": "We may thus conclude that Canadians reject government-sanctioned torture in the domestic context. However, this appeal focuses on the prospect of Canada expelling a person to face torture in another country. This raises the question whether s. 7 is implicated at all. On one theory, our inquiry need be concerned only with the Minister’s act of deporting and not with the possible consequences that the expelled refugee may face upon arriving in the destination country. If our s. 7 analysis is confined to what occurs on Canadian soil as a necessary and immediate result of the Minister’s decision, torture does not enter the picture. If, on the other hand, our analysis must take into account what may happen to the refugee in the destination country, we surely cannot ignore the possibility of grievous consequences such as torture and death, if a risk of those consequences is established.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15584,7 +15584,7 @@ "text": "We discussed this issue at some length in Burns, supra. In that case, the United States sought the extradition of two Canadian citizens to face aggravated first degree murder charges in the state of Washington. The respondents Burns and Rafay contested the extradition on the grounds that the Minister of Justice had not sought assurances that the death penalty would not be imposed. We rejected the respondents’ argument that extradition in such circumstances would violate their s. 12 right not to be subjected to cruel and unusual treatment or punishment, finding that the nexus between the extradition order and the mere possibility of capital punishment was too remote to engage s. 12. We agreed, however, with the respondents’ argument under s. 7, writing that “[s]ection 7 is concerned not only with the act of extraditing, but also the potential consequences of the act of extradition” (para. 60 (emphasis in original)). We cited, in particular, Canada v. Schmidt, [1987] 1 S.C.R. 500, at p. 522, in which La Forest J. recognized that “in some circumstances the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country, may be such that it would violate the principles of fundamental justice to surrender an accused under those circumstances”. In that case, La Forest J. referred specifically to the possibility that a country seeking extradition might torture the accused on return.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15602,7 +15602,7 @@ "text": "While the instant case arises in the context of deportation and not extradition, we see no reason that the principle enunciated in Burns should not apply with equal force here. In Burns, nothing in our s. 7 analysis turned on the fact that the case arose in the context of extradition rather than refoulement. Rather, the governing principle was a general one — namely, that the guarantee of fundamental justice applies even to deprivations of life, liberty or security effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected. We reaffirm that principle here. At least where Canada’s participation is a necessary precondition for the deprivation and where the deprivation is an entirely foreseeable consequence of Canada’s participation, the government does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand.\n\nWe therefore disagree with the Federal Court of Appeal’s suggestion that, in expelling a refugee to a risk of torture, Canada acts only as an “involuntary intermediary” (para. 120). Without Canada’s action, there would be no risk of torture. Accordingly, we cannot pretend that Canada is merely a passive participant. That is not to say, of course, that any action by Canada that results in a person being tortured or put to death would violate s. 7. There is always the question, as there is in this case, of whether there is a sufficient connection between Canada’s action and the deprivation of life, liberty, or security.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15620,7 +15620,7 @@ "text": "While this Court has never directly addressed the issue of whether deportation to torture would be inconsistent with fundamental justice, we have indicated on several occasions that extraditing a person to face torture would be inconsistent with fundamental justice. As we mentioned above, in Schmidt, supra, La Forest J. noted that s. 7 is concerned not only with the immediate consequences of an extradition order but also with “the manner in which the foreign state will deal with the fugitive on surrender, whether that course of conduct is justifiable or not under the law of that country” (p. 522). La Forest J. went on to specifically identify the possibility that the requesting country might torture the accused and then to state that “[s]ituations falling far short of this may well arise where the nature of the criminal procedures or penalties in a foreign country sufficiently shocks the conscience as to make a decision to surrender a fugitive for trial there one that breaches the principles of fundamental justice enshrined in s. 7” (p. 522).\n\nA similar view was expressed by McLachlin J. in Kindler, supra. In that case, McLachlin J. wrote that in some instances the “social consensus” as to whether extradition would violate fundamental justice would be clear. “This would be the case if, for instance, the fugitive faced torture on return to his or her home country” (p. 851). Concurring, La Forest J. wrote, similarly, that “[t]here are, of course, situations where the punishment imposed following surrender — torture, for example — would be so outrageous to the values of the Canadian community that the surrender would be unacceptable” (p. 832).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15638,7 +15638,7 @@ "text": "Canadian jurisprudence does not suggest that Canada may never deport a person to face treatment elsewhere that would be unconstitutional if imposed by Canada directly, on Canadian soil. To repeat, the appropriate approach is essentially one of balancing. The outcome will depend not only on considerations inherent in the general context but also on considerations related to the circumstances and condition of the particular person whom the government seeks to expel. On the one hand stands the state’s genuine interest in combatting terrorism, preventing Canada from becoming a safe haven for terrorists, and protecting public security. On the other hand stands Canada’s constitutional commitment to liberty and fair process. This said, Canadian jurisprudence suggests that this balance will usually come down against expelling a person to face torture elsewhere. (ii) The International Perspective\n\nWe have examined the argument that from the perspective of Canadian law to deport a Convention refugee to torture violates the principles of fundamental justice. However, that does not end the inquiry. The provisions of the Immigration Act dealing with deportation must be considered in their international context: Pushpanathan, supra. Similarly, the principles of fundamental justice expressed in s. 7 of the Charter and the limits on rights that may be justified under s. 1 of the Charter cannot be considered in isolation from the international norms which they reflect. A complete understanding of the Act and the Charter requires consideration of the international perspective.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15656,7 +15656,7 @@ "text": "International treaty norms are not, strictly speaking, binding in Canada unless they have been incorporated into Canadian law by enactment. However, in seeking the meaning of the Canadian Constitution, the courts may be informed by international law. Our concern is not with Canada’s international obligations qua obligations; rather, our concern is with the principles of fundamental justice. We look to international law as evidence of these principles and not as controlling in itself.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15674,7 +15674,7 @@ "text": "It has been submitted by the intervener, Amnesty International, that the absolute prohibition on torture is a peremptory norm of customary international law, or jus cogens. Articles 53 and 64 of the Vienna Convention on the Law of Treaties, Can. T.S. 1980 No. 37, provide that existing or new peremptory norms prevail over treaties. Article 53 defines a peremptory norm as a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. This raises the question of whether the prohibition on torture is a peremptory norm. Peremptory norms develop over time and by general consensus of the international community. This is the difficulty in interpreting international law; it is often impossible to pinpoint when a norm is generally accepted and to identify who makes up the international community. As noted by L. Hannikainen, Peremptory Norms (Jus Cogens) in International Law: Historical Development, Criteria, Present Status (1988), at pp. 723-24: The clarification of the notion of jus cogens in international law is advancing, but is still far from being completed. On the other hand, the international community of States has been inactive in stating expressly which norms it recognizes as peremptory in the present-day international law. In the opinion of the present writer, this inactivity, and the consequent uncertainty as to which norms are peremptory, constitute at present the main problem of the viability of jus cogens. [Emphasis in original.]", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15692,7 +15692,7 @@ "text": "In the case at bar, there are three compelling indicia that the prohibition of torture is a peremptory norm. First, there is the great number of multilateral instruments that explicitly prohibit torture: see Geneva Convention Relative to the Treatment of Prisoners of War (1949), Can. T.S. 1965 No. 20, p. 84, Article 3; Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (1949), Can. T.S. 1965 No. 20, p. 25, Article 3; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (1949), Can. T.S. 1965 No. 20, p. 55, Article 3; Geneva Convention Relative to the Protection of Civilian Persons in Time of War (1949), Can. T.S. 1965 No. 20, p. 163, Article 3; Universal Declaration of Human Rights, GA Res. 217 A (III), UN Doc. A/810, at 71 (1948), Article 5; Declaration on the Protection of All Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, GA Res. 3452 (XXX), UN Doc. A/10034 (1975); International Covenant on Civil and Political Rights (1966), Can. T.S. 1976 No. 47 (“ICCPR”), Article 7; European Convention for the Protection of Human Rights and Fundamental Freedoms (1950), 213 U.N.T.S. 221, Article 3; American Convention on Human Rights (1969), 1144 U.N.T.S. 123, Article 5; African Charter on Human and Peoples’ Rights (1981), 21 I.L.M. 58, Article 5; Universal Islamic Declaration of Human Rights (1981), 9:2 The Muslim World League Journal 25, Article VII.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15710,7 +15710,7 @@ "text": "Second, Amnesty International submitted that no state has ever legalized torture or admitted to its deliberate practice and that governments accused of practising torture regularly deny their involvement, placing responsibility on individual state agents or groups outside the government’s control. Therefore, it argues that the weight of these domestic practices is further evidence of a universal acceptance of the prohibition on torture. Counsel for the respondents, while not conceding this point, did not refer this Court to any evidence of state practice to contradict this submission. However, it is noted in most academic writings that most, if not all states have officially prohibited the use of torture as part of their administrative practices, see : Hannikainen, supra, at p. 503.\n\nLast, a number of international authorities state that the prohibition on torture is an established peremptory norm: see Hannikainen, supra, at p. 509; M. N. Shaw, International Law (4th ed. 1997), at pp. 203-4; Prosecutor v. Furundzija, 38 I.L.M. 317 (1999) (International Criminal Tribunal for the Former Yugoslavia, Trial Chamber, No. IT-95-17/1-T, December 10, 1998); R. v. Bow Street Metropolitan Stipendiary Magistrate, Ex parte Pinochet Ugarte (No. 3), [1999] 2 W.L.R. 827 (H.L.). Others do not explicitly set it out as a peremptory norm; however, they do generally accept that the protection of human rights or humanitarian rights is a peremptory norm: see I. Brownlie, Principles of Public International Law (5th ed. 1998), at p. 515, and C. Emanuelli, Droit international public: Contribution à l’étude du droit international selon une perspective canadienne (1998), at sections 251, 1394 and 1396.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15728,7 +15728,7 @@ "text": "Although this Court is not being asked to pronounce on the status of the prohibition on torture in international law, the fact that such a principle is included in numerous multilateral instruments, that it does not form part of any known domestic administrative practice, and that it is considered by many academics to be an emerging, if not established peremptory norm, suggests that it cannot be easily derogated from. With this in mind, we now turn to the interpretation of the conflicting instruments at issue in this case.\n\nDeportation to torture is prohibited by both the ICCPR, which Canada ratified in 1976, and the CAT, which Canada ratified in 1987. The relevant provisions of the ICCPR read: Article 4 1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law . . . . 2. No derogation from articles 6, 7, 8 (paragraphs 1 and 2), 11, 15, 16 and 18 may be made under this provision. Article 7 No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. . . . While the provisions of the ICCPR do not themselves specifically address the permissibility of a state’s expelling a person to face torture elsewhere, General Comment 20 to the ICCPR makes clear that Article 7 is intended to cover that scenario, explaining that “. . . States parties must not expose individuals to the danger of torture . . . upon return to another country by way of their extradition, expulsion or refoulement” (para. 9).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15746,7 +15746,7 @@ "text": "We do not share Robertson J.A.’s view that General Comment 20 should be disregarded because it “contradicts” the clear language of Article 7. In our view, there is no contradiction between the two provisions. General Comment 20 does not run counter to Article 7; rather, it explains it. Nothing would prevent a state from adhering both to Article 7 and to General Comment 20, and General Comment 20 does not detract from rights preserved or provided by Article 7. The clear import of the ICCPR, read together with the General Comment 20, is to foreclose a state from expelling a person to face torture elsewhere.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15764,7 +15764,7 @@ "text": "The CAT takes the same stand. The relevant provisions of that document read: Article 1 1. For the purposes of this Convention, the term “torture” means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. Article 2 1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. 2. No exceptional circumstances whatsoever . . . may be invoked as a justification of torture. Article 3 1. No State Party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. [Emphasis added.] Article 16 2. The provisions of this Convention are without prejudice to the provisions of any other international instrument or national law which prohibits cruel, inhuman or degrading treatment or punishment or which relates to extradition or expulsion.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15782,7 +15782,7 @@ "text": "The CAT’s import is clear: a state is not to expel a person to face torture, which includes both the physical and mental infliction of pain and suffering, elsewhere.\n\nRobertson J.A., however, held that the CAT’s clear proscription of deportation to torture must defer to Article 33(2) of the Refugee Convention, which permits a country to return (refouler) a refugee who is a danger to the country’s security. The relevant provisions of the Refugee Convention state: Article 33 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership or a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country.\n\nArticle 33 of the Refugee Convention appears on its face to stand in opposition to the categorical rejection of deportation to torture in the CAT. Robertson J.A., faced with this apparent contradiction, attempted to read the two conventions in a way that minimized the contradiction, holding that the anti-deportation provisions of the CAT were not binding, but derogable.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15800,7 +15800,7 @@ "text": "We are not convinced that the contradiction can be resolved in this way. It is not apparent to us that the clear prohibitions on torture in the CAT were intended to be derogable. First, the absence of an express prohibition against derogation in Article 3 of the CAT together with the “without prejudice” language of Article 16 do not seem to permit derogation. Nor does it follow from the assertion in Article 2(2) of CAT that “[n]o exceptional circumstances . . . may be invoked as a justification of torture”, that the absence of such a clause in the Article 3 refoulement provision permits acts leading to torture in exceptional circumstances. Moreover, the history of Article 16 of the CAT suggests that it was intended to leave the door open to other legal instruments providing greater protection, not to serve as the means for reducing protection. During the deliberations of the Working Group that drafted the CAT, Article 16 was characterized as a “saving clause affirming the continued validity of other instruments prohibiting punishments or cruel, inhuman, or degrading treatment”: Convention against Torture, travaux préparatoires, UN Doc. E/CN.4/1408, at p. 66. This undermines the suggestion that Article 16 can be used as a means of narrowing the scope of protection that the CAT was intended to provide.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15818,7 +15818,7 @@ "text": "In our view, the prohibition in the ICCPR and the CAT on returning a refugee to face a risk of torture reflects the prevailing international norm. Article 33 of the Refugee Convention protects, in a limited way, refugees from threats to life and freedom from all sources. By contrast, the CAT protects everyone, without derogation, from state-sponsored torture. Moreover, the Refugee Convention itself expresses a “profound concern for refugees” and its principal purpose is to “assure refugees the widest possible exercise of . . . fundamental rights and freedoms” (Preamble). This negates the suggestion that the provisions of the Refugee Convention should be used to deny rights that other legal instruments make universally available to everyone.\n\nRecognition of the dominant status of the CAT in international law is consistent with the position taken by the UN Committee against Torture, which has applied Article 3(1) even to individuals who have terrorist associations. (The CAT provides for the creation of a Committee against Torture to monitor compliance with the treaty: see CAT, Part II, Articles 17-24.) More particularly, the Committee against Torture has advised that Canada should “[c]omply fully with article 3(1) . . . whether or not the individual is a serious criminal or security risk”: see Committee against Torture, Conclusions and Recommendations of the Committee against Torture: Canada, UN Doc. CAT/C/XXV/Concl.4, at para. 6(a).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15836,7 +15836,7 @@ "text": "Finally, we note that the Supreme Court of Israel sitting as the High Court of Justice and the House of Lords have rejected torture as a legitimate tool to use in combatting terrorism and protecting national security: H.C. 6536/95, Hat’m Abu Zayda v. Israel General Security Service, 38 I.L.M. 1471 (1999); Rehman, supra, at para. 54, per Lord Hoffmann.\n\nWe conclude that the better view is that international law rejects deportation to torture, even where national security interests are at stake. This is the norm which best informs the content of the principles of fundamental justice under s. 7 of the Charter . (iii) Application to Section 53(1)(b) of the Immigration Act\n\nThe Canadian rejection of torture is reflected in the international conventions to which Canada is a party. The Canadian and international perspectives in turn inform our constitutional norms. The rejection of state action leading to torture generally, and deportation to torture specifically, is virtually categoric. Indeed, both domestic and international jurisprudence suggest that torture is so abhorrent that it will almost always be disproportionate to interests on the other side of the balance, even security interests. This suggests that, barring extraordinary circumstances, deportation to torture will generally violate the principles of fundamental justice protected by s. 7 of the Charter . To paraphrase Lord Hoffmann in Rehman, supra, at para. 54, states must find some other way of ensuring national security.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15854,7 +15854,7 @@ "text": "The Minister is obliged to exercise the discretion conferred upon her by the Immigration Act in accordance with the Constitution. This requires the Minister to balance the relevant factors in the case before her. As stated in Rehman, supra, at para. 56, per Lord Hoffmann: The question of whether the risk to national security is sufficient to justify the appellant’s deportation cannot be answered by taking each allegation seriatim and deciding whether it has been established to some standard of proof. It is a question of evaluation and judgment, in which it is necessary to take into account not only the degree of probability of prejudice to national security but also the importance of the security interest at stake and the serious consequences of deportation for the deportee. Similarly, Lord Slynn of Hadley stated, at para. 16: Whether there is . . . a real possibility [of an adverse effect on the U.K. even if it is not direct or immediate] is a matter which has to be weighed up by the Secretary of State and balanced against the possible injustice to th[e] individual if a deportation order is made. In Canada, the balance struck by the Minister must conform to the principles of fundamental justice under s. 7 of the Charter . It follows that insofar as the Immigration Act leaves open the possibility of deportation to torture, the Minister should generally decline to deport refugees where on the evidence there is a substantial risk of torture.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15872,7 +15872,7 @@ "text": "We do not exclude the possibility that in exceptional circumstances, deportation to face torture might be justified, either as a consequence of the balancing process mandated by s. 7 of the Charter or under s. 1. (A violation of s. 7 will be saved by s. 1 “only in cases arising out of exceptional conditions, such as natural disasters, the outbreak of war, epidemics and the like”: see Re B.C. Motor Vehicle Act, supra, at p. 518; and New Brunswick (Minister of Health and Community Services) v. G. (J.), [1999] 3 S.C.R. 46, at para. 99.) Insofar as Canada is unable to deport a person where there are substantial grounds to believe he or she would be tortured on return, this is not because Article 3 of the CAT directly constrains the actions of the Canadian government, but because the fundamental justice balance under s. 7 of the Charter generally precludes deportation to torture when applied on a case-by-case basis. We may predict that it will rarely be struck in favour of expulsion where there is a serious risk of torture. However, as the matter is one of balance, precise prediction is elusive. The ambit of an exceptional discretion to deport to torture, if any, must await future cases.\n\nIn these circumstances, s. 53(1)(b) does not violate s. 7 of the Charter . What is at issue is not the legislation, but the Minister’s obligation to exercise the discretion s. 53 confers in a constitutional manner. (b) Are the Terms “Danger to the Security of Canada” and “Terrorism” Unconstitutionally Vague? (i) “Danger to the Security of Canada”\n\nIn order to deny the benefit of s. 53(1) to a person seeking its protection, the Minister must certify that the person constitutes a “danger to the security of Canada”. Suresh argues that this phrase is unconstitutionally vague.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15890,7 +15890,7 @@ "text": "A vague law may be unconstitutional for either of two reasons: (1) because it fails to give those who might come within the ambit of the provision fair notice of the consequences of their conduct; or (2) because it fails to adequately limit law enforcement discretion: see R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606. In the same case, this Court held that “a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate” (p. 643).\n\nRobertson J.A. found that the phrase “danger to the security of Canada”, which is not defined in the Immigration Act, is not unconstitutionally vague (paras. 56-64). He conceded that the phrase was imprecise but reasoned that whether a person poses a danger to the security of Canada could be determined by “the individual’s degree of association or complicity with a terrorist organization” (para. 63). The government similarly argues that the phrase is not unconstitutionally vague; it contends that the phrase “refer[s] to the possibility that someone’s presence is harmful to national security in terms of the inadmissible classes” listed in s. 19 and referred to in s. 53. It suggests that the phrase can be “interpreted in the light of international law as a whole” and submits that the security of Canada is dependent on the security of other countries. On this interpretation, it need not be shown that the person’s presence in Canada poses a risk here. All that need be shown is that deportation may have a result that, viewed generally, enhances the security of Canada.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15908,7 +15908,7 @@ "text": "We agree with the government and Robertson J.A. that the phrase “danger to the security of Canada” is not unconstitutionally vague. However, we do not interpret the phrase exactly as he or the government suggests. We would not conflate s. 19’s reference to membership in a terrorist movement with “danger to the security of Canada”. While the two may be related, “danger to the security of Canada”, in our view, must mean something more than just “person described in s. 19”.\n\nWe would also, contrary to the government’s submission, distinguish “danger to the security of Canada” from “danger to the public”, although we recognize that the two phrases may overlap. The latter phrase clearly is intended to address threats to individuals in Canada, but its application is restricted by requiring that any individual who is declared to be a “danger to the public” have been convicted of a serious offence: Immigration Act, s. 53(1)(a), (c), and (d). The government’s suggested reading of “danger to the security of Canada” effectively does an end-run around the requirement in Article 33(2) of the Refugee Convention that no one may be returned (refoulé) as a danger to the community of the country unless he has first been convicted by a final judgment of a particularly serious crime.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15926,7 +15926,7 @@ "text": "Subject to these qualifications, we accept that a fair, large and liberal interpretation in accordance with international norms must be accorded to “danger to the security of Canada” in deportation legislation. We recognize that “danger to the security of Canada” is difficult to define. We also accept that the determination of what constitutes a “danger to the security of Canada” is highly fact-based and political in a general sense. All this suggests a broad and flexible approach to national security and, as discussed above, a deferential standard of judicial review. Provided the Minister is able to show evidence that reasonably supports a finding of danger to the security of Canada, courts should not interfere with the Minister’s decision.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15944,7 +15944,7 @@ "text": "The question arises whether the Minister must present direct evidence of a specific danger to the security of Canada. It has been argued that under international law the state must prove a connection between the terrorist activity and the security of the deporting country: Hathaway and Harvey, supra, at pp. 289-90. It has also been suggested that the travaux préparatoires to the Refugee Convention indicate that threats to the security of another state were not intended to qualify as a danger sufficient to permit refoulement to torture. Threats to the security of another state were arguably not intended to come within the term, nor were general concerns about terrorism intended to be sufficient: see Refugee Convention, travaux préparatoires, UN Doc. A/CONF.2/SR.16, at p. 8 (“Among the great mass of refugees it was inevitable that some persons should be tempted to engage in activities on behalf of a foreign Power against the country of their asylum, and it would be unreasonable to expect the latter not to safeguard itself against such a contingency”); see A. Grahl-Madsen, Commentary on the Refugee Convention, 1951 (1997), at p. 236 (“‘[T]he security of the country’ is invoked against acts of a rather serious nature endangering directly or indirectly the constitution (Government), the territorial integrity, the independence or the external peace of the country concerned”).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15962,7 +15962,7 @@ "text": "Whatever the historic validity of insisting on direct proof of specific danger to the deporting country, as matters have evolved, we believe courts may now conclude that the support of terrorism abroad raises a possibility of adverse repercussions on Canada’s security: see Rehman, supra, per Lord Slynn of Hadley, at paras. 16-17. International conventions must be interpreted in the light of current conditions. It may once have made sense to suggest that terrorism in one country did not necessarily implicate other countries. But after the year 2001, that approach is no longer valid.\n\nFirst, the global transport and money networks that feed terrorism abroad have the potential to touch all countries, including Canada, and to thus implicate them in the terrorist activity. Second, terrorism itself is a worldwide phenomenon. The terrorist cause may focus on a distant locale, but the violent acts that support it may be close at hand. Third, preventive or precautionary state action may be justified; not only an immediate threat but also possible future risks must be considered. Fourth, Canada’s national security may be promoted by reciprocal cooperation between Canada and other states in combating international terrorism. These considerations lead us to conclude that to insist on direct proof of a specific threat to Canada as the test for “danger to the security of Canada” is to set the bar too high. There must be a real and serious possibility of adverse effect to Canada. But the threat need not be direct; rather it may be grounded in distant events that indirectly have a real possibility of harming Canadian security.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15980,7 +15980,7 @@ "text": "While the phrase “danger to the security of Canada” must be interpreted flexibly, and while courts need not insist on direct proof that the danger targets Canada specifically, the fact remains that to return (refouler) a refugee under s. 53(1)(b) to torture requires evidence of a serious threat to national security. To suggest that something less than serious threats founded on evidence would suffice to deport a refugee to torture would be to condone unconstitutional application of the Immigration Act. Insofar as possible, statutes must be interpreted to conform to the Constitution. This supports the conclusion that while “danger to the security of Canada” must be given a fair, large and liberal interpretation, it nevertheless demands proof of a potentially serious threat.\n\nThese considerations lead us to conclude that a person constitutes a “danger to the security of Canada” if he or she poses a serious threat to the security of Canada, whether direct or indirect, and bearing in mind the fact that the security of one country is often dependent on the security of other nations. The threat must be “serious”, in the sense that it must be grounded on objectively reasonable suspicion based on evidence and in the sense that the threatened harm must be substantial rather than negligible.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -15998,7 +15998,7 @@ "text": "This definition of “danger to the security of Canada” does not mean that Canada is unable to deport those who pose a risk to individual Canadians, but not the country. A different provision, the “danger to the public” provision, allows the government to deport those who pose no danger to the security of the country per se — those who pose a danger to Canadians, as opposed to a danger to Canada — provided they have committed a serious crime. Moreover, if a refugee is wanted for crimes in a country that will not torture him or her on return, the government may be free to extradite him or her to face those charges, whether or not he or she has committed crimes in Canada.\n\nWe are satisfied that the term “danger to the security of Canada”, defined as here suggested, gives those who might come within the ambit of the provision fair notice of the consequences of their conduct, while adequately limiting law enforcement discretion. We hold, therefore, that the term is not unconstitutionally vague. (ii) “Terrorism”\n\nThe term “terrorism” is found in s. 19 of the Immigration Act, dealing with denial of refugee status upon arrival in Canada. The Minister interpreted s. 19 as applying to terrorist acts post-admission and relied on alleged terrorist associations in Canada in seeking Suresh’s deportation under s. 53(1)(b), which refers to a class of persons falling under s. 19. We do not in these reasons seek to define terrorism exhaustively — a notoriously difficult endeavour — but content ourselves with finding that the term provides a sufficient basis for adjudication and hence is not unconstitutionally vague. We share the view of Robertson J.A. that the term is not inherently ambiguous “even if the full meaning . . . must be determined on an incremental basis” (para. 69).", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16016,7 +16016,7 @@ "text": "One searches in vain for an authoritative definition of “terrorism”. The Immigration Act does not define the term. Further, there is no single definition that is accepted internationally. The absence of an authoritative definition means that, at least at the margins, “the term is open to politicized manipulation, conjecture, and polemical interpretation”: factum of the intervener Canadian Arab Federation (“CAF”), at para. 8; see also W. R. Farrell, The U.S. Government Response to Terrorism: In Search of an Effective Strategy (1982), at p. 6 (“The term [terrorism] is somewhat ‘Humpty Dumpty’ — anything we choose it to be”); O. Schachter, “The Extraterritorial Use of Force Against Terrorist Bases” (1989), 11 Houston J. Int’l L. 309, at p. 309 (“[n]o single inclusive definition of international terrorism has been accepted by the United Nations or in a generally accepted multilateral treaty”); G. Levitt, “Is ‘Terrorism’ Worth Defining?” (1986), 13 Ohio N.U. L. Rev. 97, at p. 97 (“The search for a legal definition of terrorism in some ways resembles the quest for the Holy Grail”); C. C. Joyner, “Offshore Maritime Terrorism: International Implications and the Legal Response” (1983), 36 Naval War C. Rev. 16, at p. 20 (terrorism’s “exact status under international law remains open to conjecture and polemical interpretation”); and J. B. Bell, A Time of Terror: How Democratic Societies Respond to Revolutionary Violence (1978), at p. x (“The very word [terrorism] becomes a litmus test for dearly held beliefs, so that a brief conversation on terrorist matters with almost anyone reveals a special world view, an interpretation of the nature of man, and a glimpse into a desired future.”)", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16034,7 +16034,7 @@ "text": "Even amongst those who agree on the definition of the term, there is considerable disagreement as to whom the term should be attached: see, e.g., I. M. Porras, “On Terrorism: Reflections on Violence and the Outlaw” (1994), Utah L. Rev. 119, at p. 124 (noting the general view that “terrorism” is poorly defined but stating that “[w]ith ‘terrorism’ . . . everyone means the same thing. What changes is not the meaning of the word, but rather the groups and activities that each person would include or exclude from the list”); D. Kash, “Abductions of Terrorists in International Airspace and on the High Seas” (1993), 8 Fla. J. Int’l L. 65, at p. 72 (“[A]n act that one state considers terrorism, another may consider as a valid exercise of resistance”). Perhaps the most striking example of the politicized nature of the term is that Nelson Mandela’s African National Congress was, during the apartheid era, routinely labelled a terrorist organization, not only by the South African government but by much of the international community.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16052,7 +16052,7 @@ "text": "We are not persuaded, however, that the term “terrorism” is so unsettled that it cannot set the proper boundaries of legal adjudication. The recently negotiated International Convention for the Suppression of the Financing of Terrorism, GA Res. 54/109, December 9, 1999, approaches the definitional problem in two ways. First, it employs a functional definition in Article 2(1)(a), defining “terrorism” as “[a]n act which constitutes an offence within the scope of and as defined in one of the treaties listed in the annex”. The annex lists nine treaties that are commonly viewed as relating to terrorist acts, such as the Convention for the Suppression of the Unlawful Seizure of Aircraft, Can. T.S. 1972 No. 23, the Convention on the Physical Protection of Nuclear Material, 18 I.L.M. 1419, and the International Convention for the Suppression of Terrorist Bombings, 37 I.L.M. 249. Second, the Convention supplements this offence-based list with a stipulative definition of terrorism. Article 2(1)(b) defines “terrorism” as: Any . . . act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16070,7 +16070,7 @@ "text": "In its submission to this Court, the CAF argued that this Court should adopt a functional definition of terrorism, rather than a stipulative one. The argument is that defining terrorism by reference to specific acts of violence (e.g. “hijacking, hostage taking and terrorist bombing”) would minimize politicization of the term (CAF factum, at paras. 11-14). It is true that the functional approach has received strong support from international law scholars and state representatives — support that is evidenced by the numerous international legal instruments that eschew stipulative definitions in favour of prohibitions on specific acts of violence. While we are not unaware of the danger that the term “terrorism” may be manipulated, we are not persuaded that it is necessary or advisable to altogether eschew a stipulative definition of the term in favour of a list that may change over time and that may in the end necessitate distinguishing some (proscribed) acts from other (non-proscribed) acts by reliance on a term like “terrorism”. (We note that the CAF, in listing acts, at para. 11, that might be prohibited under a functional definition, lists “terrorist bombing” — a category that clearly would not avoid the necessity of defining “terrorism”.)", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16088,7 +16088,7 @@ "text": "In our view, it may safely be concluded, following the International Convention for the Suppression of the Financing of Terrorism, that “terrorism” in s. 19 of the Act includes any “act intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict, when the purpose of such act, by its nature or context, is to intimidate a population, or to compel a government or an international organization to do or to abstain from doing any act”. This definition catches the essence of what the world understands by “terrorism”. Particular cases on the fringes of terrorist activity will inevitably provoke disagreement. Parliament is not prevented from adopting more detailed or different definitions of terrorism. The issue here is whether the term as used in the Immigration Act is sufficiently certain to be workable, fair and constitutional. We believe that it is. (iii) Conclusion\n\nWe conclude that the terms “danger to the security of Canada” and “terrorism” are not unconstitutionally vague. Applying them to the facts found in this case, they would prima facie permit the deportation of Suresh provided the Minister certifies him to be a substantial danger to Canada and provided he is found to be engaged in terrorism or a member of a terrorist organization as set out in s. 19(1)(e) and (f) of the Immigration Act. (c) Does Deportation for Membership in a Terrorist Organization Unjustifiably Violate the Charter Guarantees of Freedom of Expression and Freedom of Association?", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16106,7 +16106,7 @@ "text": "Suresh argues that the Minister’s issuance of the certificate under s. 40.1 of the Immigration Act and the order declaring him a danger to the security of Canada under s. 53(1)(b) on the ground that he was a member of the LTTE violate his Charter rights of free expression and free association and cannot be justified. He points out that he has not been involved in actual terrorist activity in Canada, but merely in fund-raising and support activities that may, in some part, contribute to the civil war efforts of Tamils in Sri Lanka. He also points out that it is not a criminal offence to belong to such an organization and that the government seeks to deport him for something that Canadian citizens may lawfully do without sanction. He suggests that inclusion of mere membership in an organization that has been or will be involved in acts of terrorism unjustifiably limits the freedom of Convention refugees to express their views on dissident movements outside the country, as well as their freedom to associate with other people in Canada who come from similar backgrounds. He points out that the alleged terrorist organizations he was found to have been a member of are engaged in many positive endeavours to improve the lives of people in Canada and are not involved in violence here.\n\nThe government, for its part, argues that support of organizations that have engaged in or may assist terrorism is not constitutionally protected expression or association. It argues that constitutional rights cannot be extended to inflict harm on others. This is so, in the government’s submission, even though many of the activities of the organization may be laudable. Accordingly, it says, ss. 2( b ) and 2( d ) of the Charter do not apply.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16124,7 +16124,7 @@ "text": "Section 19 of the Immigration Act applies to the entry of refugees into Canada. The Refugee Convention, and following it the Immigration Act, distinguish between the power of a state to refuse entry to a refugee, and its power to deport or “refouler” the refugee once the refugee is established in the country as a Convention refugee. The powers of a state to refuse entry are broader than to deport. The broader powers to refuse entry are based inter alia on the need to prevent criminals escaping justice in their own country from entering into Canada. No doubt the natural desire of states to reject unsuitable persons who by their conduct have put themselves “beyond the pale” also is a factor. See, generally, Hathaway and Harvey, supra.\n\nThe main purport of s. 19(1) is to permit Canada to refuse entry to persons who are or have been engaged in terrorism or who are or have been members of terrorist organizations. However, the Immigration Act uses s. 19(1) in a second and different way. It uses it in s. 53(1), the deportation section, to define the class of Convention refugees who may be deported because they constitute a danger to the security of Canada. Thus a Convention refugee like Suresh may be deported if he comes within a class of persons defined in s. 19(1) and constitutes a danger to the security of Canada.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16142,7 +16142,7 @@ "text": "At this point, an ambiguity in the combination of ss. 53 and 19 arises. Is the class of persons designated by the reference to s. 19 those persons who at entry were or had been associated with terrorist acts or members of terrorist organizations? Or was Parliament’s intention to include those who after entry committed terrorist acts or were members of terrorist organizations? The Minister interprets s. 19, as incorporated into s. 53, as including conduct of refugees after entry.\n\nWe do not find it necessary to resolve this ambiguity, as in our opinion on either interpretation, s. 19 as incorporated into s. 53 does not breach the rights of free expression and association guaranteed by ss. 2( b ) and 2( d ) of the Charter . If s. 19 , as used in s. 53 , is interpreted as referring only to conduct prior to the point of entry, no constitutional problem arises. On the other hand, if it is interpreted as referring to post-entry conduct, we are satisfied that the conduct caught by the section, interpreted properly by the Minister, fails to attract constitutional protection because it would be conduct associated with violent activity.\n\nSection 53, as discussed earlier in connection with deportation to face torture, requires the Minister to balance a variety of factors relating on the one hand to concerns of national security, and to fair process to the Convention refugee on the other. In balancing these factors, the Minister must exercise her discretion in conformity with the values of the Charter .", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16160,7 +16160,7 @@ "text": "It is established that s. 2 of the Charter does not protect expressive or associational activities that constitute violence: Keegstra, supra. This Court has, it is true, given a broad interpretation to freedom of expression, extending it, for example, to hate speech and perhaps even threats of violence: Keegstra; R. v. Zundel, [1992] 2 S.C.R. 731. At the same time, the Court has made plain that the restriction of such expression may be justified under s. 1 of the Charter : see Keegstra, at pp. 732-33. The effect of s. 2(b) and the justification analysis under s. 1 of the Charter suggest that expression taking the form of violence or terror, or directed towards violence or terror, is unlikely to find shelter in the guarantees of the Charter .\n\nThe Minister’s discretion to deport under s. 53 of the Immigration Act is confined, on any interpretation of the section, to persons who have been engaged in terrorism or are members of terrorist organizations, and who also pose a threat to the security of Canada. Persons associated with terrorism or terrorist organizations — the focus of this argument — are, on the approach to terrorism suggested above, persons who are or have been associated with things directed at violence, if not violence itself. It follows that so long as the Minister exercises her discretion in accordance with the Act, there will be no ss. 2( b ) or (d) Charter violation.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16178,7 +16178,7 @@ "text": "Suresh argues that s. 19 is so broadly drafted that it has the potential to catch persons who are members of or participate in the activities of a terrorist organization in ignorance of its terrorist activities. He points out that many organizations alleged to support terrorism also support humanitarian aid both in Canada and abroad. Indeed, he argues that this is so of the LTTE, the association to which he is alleged to belong. While it seems clear on the evidence that Suresh was not ignorant of the LTTE’s terrorist activities, he argues that it may be otherwise for others who were members or contributed to its activities. Thus without knowingly advocating terrorism and violence, they may be found to be part of the organization and hence subject to deportation. This, he argues, would clearly violate ss. 2( b ) and 2( d ) of the Charter .", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16196,7 +16196,7 @@ "text": "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.\n\nIt follows that the appellant has not established that s. 53’s reference to s. 19 unjustifiably violates his Charter rights of freedom of expression and freedom of association. Moreover, since there is no s. 2 violation, there is no basis to interfere with the s. 40.1 certificate that was issued in October 1995.\n\nThis brings us to Suresh’s final argument, that the process by which the Minister assessed the risk of torture he faces should he be returned to Sri Lanka was flawed and violated his constitutional rights by unjustly exposing him to the risk of torture. 3. Are the Procedures for Deportation Set Out in the Immigration Act Constitutionally Valid?", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16214,7 +16214,7 @@ "text": "This appeal requires us to determine the procedural protections to which an individual is entitled under s. 7 of the Charter . In doing so, we find it helpful to consider the common law approach to procedural fairness articulated by L’Heureux-Dubé J. in Baker, supra. In elaborating what is required by way of procedural protection under s. 7 of the Charter in cases of this kind, we wish to emphasize that our proposals should be applied in a manner sensitive to the context of specific factual situations. What is important are the basic principles underlying these procedural protections. The principles of fundamental justice of which s. 7 speaks, though not identical to the duty of fairness elucidated in Baker, are the same principles underlying that duty. As Professor Hogg has said, “The common law rules [of procedural fairness] are in fact basic tenets of the legal system, and they have evolved in response to the same values and objectives as s. 7”: see P. W. Hogg, Constitutional Law of Canada (loose-leaf ed.) vol. 2, at para. 44.20. In Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at pp. 212-13, Wilson J. recognized that the principles of fundamental justice demand, at a minimum, compliance with the common law requirements of procedural fairness. Section 7 protects substantive as well as procedural rights: Re B.C. Motor Vehicle Act, supra. Insofar as procedural rights are concerned, the common law doctrine summarized in Baker, supra, properly recognizes the ingredients of fundamental justice.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16232,7 +16232,7 @@ "text": "We therefore find it appropriate to look to the factors discussed in Baker in determining not only whether the common law duty of fairness has been met, but also in deciding whether the safeguards provided satisfy the demands of s. 7. In saying this, we emphasize that, as is the case for the substantive aspects of s. 7 in connection with deportation to torture, we look to the common law factors not as an end in themselves, but to inform the s. 7 procedural analysis. At the end of the day, the common law is not constitutionalized; it is used to inform the constitutional principles that apply to this case.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16250,7 +16250,7 @@ "text": "What is required by the duty of fairness — and therefore the principles of fundamental justice — is that the issue at hand be decided in the context of the statute involved and the rights affected: Baker, supra, at para. 21; Knight v. Indian Head School Division No. 19, [1990] 1 S.C.R. 653, at p. 682; Old St. Boniface Residents Assn. Inc. v. Winnipeg (City), [1990] 3 S.C.R. 1170, per Sopinka J. More specifically, deciding what procedural protections must be provided involves consideration of the following factors: (1) the nature of the decision made and the procedures followed in making it, that is, “the closeness of the administrative process to the judicial process”; (2) the role of the particular decision within the statutory scheme; (3) the importance of the decision to the individual affected; (4) the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedure to be followed; and (5) the choice of procedure made by the agency itself: Baker, supra, at paras. 23-27. This is not to say that other factors or considerations may not be involved. This list of factors is non-exhaustive in determining the common law duty of fairness: Baker, supra, at para. 28. It must necessarily be so in determining the procedures demanded by the principles of fundamental justice.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16268,7 +16268,7 @@ "text": "The nature of the decision to deport bears some resemblance to judicial proceedings. While the decision is of a serious nature and made by an individual on the basis of evaluating and weighing risks, it is also a decision to which discretion must attach. The Minister must evaluate not only the past actions of and present dangers to an individual under her consideration pursuant to s. 53, but also the future behaviour of that individual. We conclude that the nature of the decision militates neither in favour of particularly strong, nor particularly weak, procedural safeguards.\n\nThe nature of the statutory scheme suggests the need for strong procedural safeguards. While the procedures set up under s. 40.1 of the Immigration Act are extensive and aim to ensure that certificates under that section are issued fairly and allow for meaningful participation by the person involved, there is a disturbing lack of parity between these protections and the lack of protections under s. 53(1)(b). In the latter case, there is no provision for a hearing, no requirement of written or oral reasons, no right of appeal — no procedures at all, in fact. As L’Heureux-Dubé J. stated in Baker, supra, “[g]reater procedural protections . . . will be required when no appeal procedure is provided within the statute, or when the decision is determinative of the issue and further requests cannot be submitted” (para. 24). This is particularly so where, as here, Parliament elsewhere in the Act has constructed fair and systematic procedures for similar measures.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16286,7 +16286,7 @@ "text": "The third factor requires us to consider the importance of the right affected. As discussed above, the appellant’s interest in remaining in Canada is highly significant, not only because of his status as a Convention refugee, but also because of the risk of torture he may face on return to Sri Lanka as a member of the LTTE. The greater the effect on the life of the individual by the decision, the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamental justice under s. 7 of the Charter . Deportation from Canada engages serious personal, financial and emotional consequences. It follows that this factor militates in favour of heightened procedural protections under s. 53(1)( b ) . Where, as here, a person subject to a s. 53(1)( b ) opinion may be subjected to torture, this factor requires even more substantial protections.\n\nAs discussed above, Article 3 of the CAT, which explicitly prohibits the deportation of persons to states where there are “substantial grounds” for believing that the person would be “in danger of being subjected to torture”, informs s. 7 of the Charter . It is only reasonable that the same executive that bound itself to the CAT intends to act in accordance with the CAT’s plain meaning. Given Canada’s commitment to the CAT, we find that the appellant had the right to procedural safeguards, at the s. 53(1)( b ) stage of the proceedings. More particularly, the phrase “substantial grounds” raises a duty to afford an opportunity to demonstrate and defend those grounds.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16304,7 +16304,7 @@ "text": "The final factor we consider is the choice of procedures made by the agency. In this case, the Minister is free under the terms of the statute to choose whatever procedures she wishes in making a s. 53(1)(b) decision. As noted above, the Minister must be allowed considerable discretion in evaluating future risk and security concerns. This factor also suggests a degree of deference to the Minister’s choice of procedures since Parliament has signaled the difficulty of the decision by leaving to the Minister the choice of how best to make it. At the same time, this need for deference must be reconciled with the elevated level of procedural protections mandated by the serious situation of refugees like Suresh, who if deported may face torture and violations of human rights in which Canada can neither constitutionally, nor under its international treaty obligations, be complicit.\n\nWeighing these factors together with all the circumstances, we are of the opinion that the procedural protections required by s. 7 in this case do not extend to the level of requiring the Minister to conduct a full oral hearing or a complete judicial process. However, they require more than the procedure required by the Act under s. 53(1)(b) — that is, none — and they require more than Suresh received.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16322,7 +16322,7 @@ "text": "We find that a person facing deportation to torture under s. 53(1)(b) must be informed of the case to be met. Subject to privilege or similar valid reasons for reduced disclosure, such as safeguarding confidential public security documents, this means that the material on which the Minister is basing her decision must be provided to the individual, including memoranda such as Mr. Gautier’s recommendation to the Minister. Furthermore, fundamental justice requires that an opportunity be provided to respond to the case presented to the Minister. While the Minister accepted written submissions from the appellant in this case, in the absence of access to the material she was receiving from her staff and on which she based much of her decision, Suresh and his counsel had no knowledge of which factors they specifically needed to address, nor any chance to correct any factual inaccuracies or mischaracterizations. Fundamental justice requires that written submissions be accepted from the subject of the order after the subject has been provided with an opportunity to examine the material being used against him or her. The Minister must then consider these submissions along with the submissions made by the Minister’s staff.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16340,7 +16340,7 @@ "text": "Not only must the refugee be informed of the case to be met, the refugee must also be given an opportunity to challenge the information of the Minister where issues as to its validity arise. Thus the refugee should be permitted to present evidence pursuant to s. 19 of the Act showing that his or her continued presence in Canada will not be detrimental to Canada, notwithstanding evidence of association with a terrorist organization. The same applies to the risk of torture on return. Where the Minister is relying on written assurances from a foreign government that a person would not be tortured, the refugee must be given an opportunity to present evidence and make submissions as to the value of such assurances.\n\nIt may be useful to comment further on assurances. A distinction may be drawn between assurances given by a state that it will not apply the death penalty (through a legal process) and assurances by a state that it will not resort to torture (an illegal process). We would signal the difficulty in relying too heavily on assurances by a state that it will refrain from torture in the future when it has engaged in illegal torture or allowed others to do so on its territory in the past. This difficulty becomes acute in cases where torture is inflicted not only with the collusion but through the impotence of the state in controlling the behaviour of its officials. Hence the need to distinguish between assurances regarding the death penalty and assurances regarding torture. The former are easier to monitor and generally more reliable than the latter.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16358,7 +16358,7 @@ "text": "In evaluating assurances by a foreign government, the Minister may also wish to take into account the human rights record of the government giving the assurances, the government’s record in complying with its assurances, and the capacity of the government to fulfill the assurances, particularly where there is doubt about the government’s ability to control its security forces. In addition, it must be remembered that before becoming a Convention refugee, the individual involved must establish a well-founded fear of persecution (although not necessarily torture) if deported.\n\nThe Minister must provide written reasons for her decision. These reasons must articulate and rationally sustain a finding that there are no substantial grounds to believe that the individual who is the subject of a s. 53(1)(b) declaration will be subjected to torture, execution or other cruel or unusual treatment, so long as the person under consideration has raised those arguments. The reasons must also articulate why, subject to privilege or valid legal reasons for not disclosing detailed information, the Minister believes the individual to be a danger to the security of Canada as required by the Act. In addition, the reasons must also emanate from the person making the decision, in this case the Minister, rather than take the form of advice or suggestion, such as the memorandum of Mr. Gautier. Mr. Gautier’s report, explaining to the Minister the position of Citizenship and Immigration Canada, is more like a prosecutor’s brief than a statement of reasons for a decision.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16376,7 +16376,7 @@ "text": "These procedural protections need not be invoked in every case, as not every case of deportation of a Convention refugee under s. 53(1)(b) will involve risk to an individual’s fundamental right to be protected from torture or similar abuses. It is for the refugee to establish a threshold showing that a risk of torture or similar abuse exists before the Minister is obliged to consider fully the possibility. This showing need not be proof of the risk of torture to that person, but the individual must make out a prima facie case that there may be a risk of torture upon deportation. If the refugee establishes that torture is a real possibility, the Minister must provide the refugee with all the relevant information and advice she intends to rely on, provide the refugee an opportunity to address that evidence in writing, and after considering all the relevant information, issue responsive written reasons. This is the minimum required to meet the duty of fairness and fulfill the requirements of fundamental justice under s. 7 of the Charter .", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16394,7 +16394,7 @@ "text": "The Minister argues that even if the procedures used violated Suresh’s s. 7 rights, that violation is justified as a reasonable limit under s. 1 of the Charter . Despite the legitimate purpose of s. 53(1)(b) of the Immigration Act in striking a balance between the need to fulfil Canada’s commitments with respect to refugees and the maintenance of the safety and good order of Canadian society, the lack of basic procedural protections provided to Suresh cannot be justified by s. 1 in our view. Valid objectives do not, without more, suffice to justify limitations on rights. The limitations must be connected to the objective and be proportional. Here the connection is lacking. A valid purpose for excepting some Convention refugees from the protection of s. 53(1) of the Act does not justify the failure of the Minister to provide fair procedures where this exception involves a risk of torture upon deportation. Nor do the alleged fundraising activities of Suresh rise to the level of exceptional conditions contemplated by Lamer J. in Re B.C. Motor Vehicle Act, supra. Consequently, the issuance of a s. 53(1)(b) opinion relating to him without the procedural protections mandated by s. 7 is not justified under s. 1. 4. Should the Minister’s Order Be Set Aside and a New Hearing Ordered?", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16412,7 +16412,7 @@ "text": "We conclude that generally to deport a refugee, where there are grounds to believe that this would subject the refugee to a substantial risk of torture, would unconstitutionally violate the Charter ’s s. 7 guarantee of life, liberty and security of the person. This said, we leave open the possibility that in an exceptional case such deportation might be justified either in the balancing approach under ss. 7 or 1 of the Charter . We reject the argument that the terms “danger to the security of Canada” and “terrorism” are unconstitutionally vague. We also reject the argument that s. 53 , by its reference to s. 19 , unconstitutionally violates the Charter guarantees of freedom of expression and association. Finally, we conclude that the procedures for deportation under the Immigration Act, when applied in accordance with the safeguards outlined in these reasons, are constitutional.\n\nApplying these conclusions in the instant case, we find that Suresh made a prima facie showing that he might be tortured on return if expelled to Sri Lanka. Accordingly, he should have been provided with the procedural safeguards necessary to protect his s. 7 right not to be expelled to torture. He was not provided the required safeguards. We therefore remand the case to the Minister for reconsideration in accordance with the procedures set out in these reasons. V. Conclusion", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16430,7 +16430,7 @@ "text": "The appeal is allowed with costs throughout on a party and party basis. The constitutional questions are answered as follows: 1. Does s. 53(1)(b) of the Immigration Act, R.S.C. 1985, c. I-2, offend s. 7 of the Canadian Charter of Rights and Freedoms to the extent that it does not prohibit the Minister of Citizenship and Immigration from removing a person from Canada to a country where the person may face a risk of torture? Answer: No. 2. If the answer to question 1 is in the affirmative, is s. 53(1)(b) of the Immigration Act a reasonable limit within the meaning of s. 1 of the Charter on the rights of a person who may face a risk of torture if removed to a particular country? Answer: It is not necessary to answer this question. 3. Do ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act infringe the freedoms guaranteed under ss. 2( b ) and 2( d ) of the Charter ? Answer: Section 19(1) of the Immigration Act, as incorporated by s. 53(1), does not infringe ss. 2( b ) and 2( d ) of the Charter . 4. If the answer to question 3 is in the affirmative, are ss. 19(1)(e)(iv)(C), 19(1)(f)(ii) and 19(1)(f)(iii)(B) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s. 1 of the Charter ? Answer: It is not necessary to answer this question. 5. Is the term “danger to the security of Canada” found in s. 53(1)(b) of the Immigration Act and/or the term “terrorism” found in s. 19(1)(e) and (f) of the Immigration Act void for vagueness and therefore contrary to the principles of fundamental justice under s. 7 of the Charter ? Answer: No. 6. If the answer to question 5 is in the affirmative, are ss. 53(1)(b) and/or s. 19(1)(e) and (f) of the Immigration Act a reasonable limit on the rights of a person within the meaning of s.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16448,7 +16448,7 @@ "text": "1 of the Charter ? Answer: It is not necessary to answer this question. Appeal allowed with costs.", "current_to": "2002-01-11", "last_amended": "", - "history": "Also reported: [2002] 1 SCR 3", + "history": "[2002] 1 SCR 3", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1937/index.do" }, { @@ -16466,7 +16466,7 @@ "text": "The writ of habeas corpus is an ancient legal remedy that remains fundamental to individual liberty and the rule of law today. Dating back to the 13th century, this writ guarantees the individual’s protection from unlawful deprivations of liberty. Entrenched in s. 10( c ) of the Canadian Charter of Rights and Freedoms , the right to habeas corpus permits those in detention to go before a provincial superior court and demand to know whether the detention is justified in law. If the relevant authority cannot provide sufficient justification, the person must be released.\n\nDespite the importance of habeas corpus, this Court has carved out two limited exceptions to its availability. First, a provincial superior court should decline jurisdiction to entertain an application for habeas corpus where a prisoner is using the application to attack the legality of their conviction or sentence, as this is properly accomplished through the ordinary appeal mechanisms set out in the Criminal Code , R.S.C. 1985, c. C-46 (see R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37). Second, a provincial superior court should also decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May v. Ferndale Institution, 2005 SCC 82, [2005] 3 S.C.R. 809, at para. 40). This second exception has come to be known as the Peiroo exception (see Peiroo v. Canada (Minister of Employment and Immigration) (1989), 69 O.R. (2d) 253 (C.A.)).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16484,7 +16484,7 @@ "text": "In this case, Mr. Chhina applied for habeas corpus, arguing that his immigration detention had become unlawful under the Charter because of its length and uncertain duration. He also challenged his detention on the basis that he was being held in inappropriate lockdown conditions at a maximum security unit.\n\nThis Court must determine whether the Alberta Court of Queen’s Bench erred in declining its jurisdiction to entertain Mr. Chhina’s application for habeas corpus on the basis that the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), satisfies the second exception.\n\nThe parties do not contest that the statutory scheme set out in the IRPA provides a complete, comprehensive and expert procedure for the review of immigration matters generally. This was the conclusion reached by the Ontario Court of Appeal in Peiroo. What this case emphasizes, however, is that the determination of whether such a scheme is as broad and advantageous as habeas corpus must be considered with respect to the particular basis upon which the lawfulness of the detention is challenged.\n\nTherefore, the Peiroo exception does not bar habeas corpus applications with respect to all deprivations of liberty arising from the immigration scheme. Rather the question here is whether the IRPA provides a review procedure that is at least as broad and advantageous as habeas corpus regarding the specific challenges to the legality of the detention raised by the habeas corpus application.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16502,7 +16502,7 @@ "text": "In my view, it does not. Mr. Chhina did not challenge his immigration status, deportation order or detention order as failing to respect the IRPA . Rather, he claimed that his continued detention had become unlawful because its length, conditions and uncertain duration violated his Charter rights. The IRPA does not provide for review that is at least as broad and advantageous as habeas corpus for such matters. Mr. Chhina was therefore entitled to have his application for habeas corpus heard by a judge of the Alberta Court of Queen’s Bench. II. Background\n\nThe respondent, Tusif Chhina, entered Canada under another name in December 2006 and obtained refugee status approximately two years later. In February 2012, Mr. Chhina’s refugee status was vacated and he was declared inadmissible to Canada due to both misrepresentations in his refugee application and his involvement in criminal activity. A deportation order was issued against him.\n\nFollowing time spent in criminal custody, Mr. Chhina was taken into immigration detention in April 2013. However, in light of delays in obtaining travel documents from Pakistan, Mr. Chhina was released with conditions seven months later. Mr. Chhina failed to respect his conditions and disappeared for a year, but he was eventually taken back into immigration custody in November 2015. He was detained in the Calgary Remand Centre, a maximum security unit which keeps inmates on lockdown 22 and a half hours a day. Pursuant to s. 57 of the IRPA , immigration officials reviewed Mr. Chhina’s detention on a monthly basis, each time upholding the decision that he should be detained.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16520,7 +16520,7 @@ "text": "Mr. Chhina filed his habeas corpus application in May 2016, arguing that his immigration detention had become unlawful both because it had become lengthy and indeterminate and because the conditions of his detention were “inappropriate” (Court of Queen’s Bench of Alberta Reasons, No. 160576914X1, September 2, 2016 (unreported), at p. 2). At the time of his application before the Alberta Court of Queen’s Bench, he had spent a total of 13 months in immigration detention.\n\nThe chambers judge declined jurisdiction to consider Mr. Chhina’s application for habeas corpus, citing the IRPA as a comprehensive legislative framework that would satisfy the Peiroo exception.\n\nThe Alberta Court of Appeal (2017 ABCA 248, 56 Alta. L.R. (6th) 1) reversed that decision, holding that the chambers judge should have exercised his discretion to hear Mr. Chhina’s habeas corpus application. Given the importance of the writ, the court noted that exceptions to the availability of habeas corpus must be limited and well-defined. As such, a chambers judge should decline to hear habeas corpus applications only in limited circumstances, beyond which the decision to decline jurisdiction constitutes an error of law.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16538,7 +16538,7 @@ "text": "While acknowledging the holding in Peiroo, Greckol J.A., writing for the court, concluded that the exception does not bar habeas corpus applications in all immigration-related matters. She distinguished Mr. Chhina’s challenge noting that, unlike the applicant in Peiroo, Mr. Chhina did not contest determinations regarding his inadmissibility or deportation. Instead, he challenged the legality of his detention, incidental to those determinations, on Charter grounds. The outcome of Mr. Chhina’s habeas corpus application would have no effect on his immigration status or deportation order but, if successful, would affect his immediate liberty.\n\nThrough this lens, Greckol J.A. saw clear differences between the review and relief available via the IRPA process as compared to an application for habeas corpus, finding the latter broader and more advantageous where the challenge related to the length and indeterminate nature of the detention. As such, the Peiroo exception did not apply to Mr. Chhina’s case and the matter was remitted to the Court of Queen’s Bench for a hearing on the merits of the habeas corpus application.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16556,7 +16556,7 @@ "text": "Travel documents were subsequently obtained for Mr. Chhina and he was removed from Canada in September 2017. Thus, the arguments regarding his detention are now moot. But as Mr. Chhina’s case illustrates, habeas corpus applications are often evasive of review, as the shifting factual circumstances frequently render the application moot before appellate review can be obtained (Mission Institution v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502, at para. 14). Given the importance of clearly delineating the exceptions to habeas corpus, it is appropriate for this Court to consider the legal issues raised by Mr. Chhina’s appeal notwithstanding its mootness. No party has objected to this Court doing so. III. Issues\n\nThis appeal concerns the scope and application of the Peiroo exception, providing the Court with an opportunity to clarify when a complete, comprehensive and expert statutory scheme provides for review that is as broad and advantageous as habeas corpus such that an applicant will be precluded from bringing an application for habeas corpus.[1] IV. Analysis", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16574,7 +16574,7 @@ "text": "Provincial superior courts have inherent jurisdiction to hear habeas corpus applications (May, at para. 29). An application for habeas corpus requires the applicant to establish a deprivation of liberty and to raise a legitimate ground for questioning the legality of that deprivation. If this is accomplished, the onus then shifts to the authority in question to show that the deprivation of liberty is lawful. In order for detention to be lawful, the decision-maker must have authority to order detention, the decision-making process must be fair, and the decision to detain must be both reasonable and compliant with the Charter (May, at para. 77; R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 72). Changes in conditions or orders leading to further deprivations of liberty may also be challenged in the same manner. Where, as here, the application is brought with certiorari in aid, the court hearing the application conducts its review on the basis of the record that resulted in the decision (J. Farbey, R. J. Sharpe and S. Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 45; Mission Institution v. Khela, at para. 35; R. v. Miller, [1985] 2 S.C.R. 613, at p. 624).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16592,7 +16592,7 @@ "text": "The writ of habeas corpus is not a discretionary remedy; it issues as of right where the applicant successfully challenges the legality of a detention. A provincial superior court may not decline jurisdiction to hear such an application merely because alternative remedies are available (May, at paras. 34 and 44). Such a court may only decline jurisdiction where the legislator has put in place “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” (May, at para. 40; R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409, at para. 65). As Mr. Chhina’s case illustrates, this analysis must be undertaken regarding the nature of the specific challenge to the legality of the detention raised in the habeas corpus application.\n\nHabeas corpus — which roughly translates to “produce the body” — was a familiar phrase in 13th century English civil procedure; it required the defendant of an action to be brought physically before the court (Farbey, Sharpe and Atrill, at p. 2). During the 15th and 16th centuries, habeas corpus took on its modern form, permitting an applicant to demand justification for their detention (at p. 4) and becoming the “great and efficacious writ in all manner of illegal confinement” (W. Blackstone, Commentaries on the Laws of England, Book III: Of Private Wrongs (2016), by T. P. Gallanis, at p. 89). Habeas corpus has never been “a static, narrow, formalistic remedy”; rather, over the centuries, it “has grown to achieve its grand purpose — the protection of individuals against erosion of their right to be free from wrongful restraints upon their liberty” (May, at para. 21, citing Jones v. Cunningham, 371 U.S. 236 (1962), at p. 243).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16610,7 +16610,7 @@ "text": "Habeas corpus continues to hold a vital and distinguished place in Canada’s modern legal landscape. Before the advent of the Charter , s. 2 of the Canadian Bill of Rights , S.C. 1960, c. 44 , established that no law of Canada would be construed or applied so as to deprive a person of a determination on the validity of their detention, and provided for release where that detention was found to be unlawful. In 1982, habeas corpus became a constitutional right entrenched in s. 10( c ) of the Charter : 10. Everyone has the right on arrest or detention . . . (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.\n\nThe review of legality under habeas corpus is broad, often protecting and interacting with other Charter rights, including: the right to life, liberty and security of the person, as guaranteed by s. 7; the right not to be arbitrarily detained or imprisoned, as guaranteed by s. 9; and the right not to be subjected to any cruel and unusual treatment or punishment, as guaranteed by s. 12.\n\nThe case of Dumas v. Leclerc Institute, [1986] 2 S.C.R. 459, helpfully illustrates different circumstances in which a deprivation of liberty may arise, and thus, different ways in which a detention may be challenged. A deprivation of liberty may relate to (1) the initial decision requiring the detention; or to a further deprivation of liberty based on (2) a change in the conditions of the detention; or (3) the continuation of the detention.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16628,7 +16628,7 @@ "text": "While not exhaustive, this list may be particularly helpful in pinpointing the nature of a challenge to a deprivation of liberty for reasons beyond those underlying an initial order. As I shall explore in more detail below, these three categories can assist in explaining the relevant case-law. For example, in the immigration context, a finding of inadmissibility may lead to a detention order that constitutes an initial deprivation of liberty: this is the first Dumas category (Peiroo). The transfer of prisoners from a lower to a higher security institution is emblematic of the second type of deprivation: a change in circumstances resulting in an additional deprivation of liberty (May). The third type of deprivation outlined in Dumas can speak to extended detentions or detentions of uncertain duration, which may engage ss. 7 and 9 of the Charter , as was argued here (and in Chaudhary v. Canada (Minister of Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401, and Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220).\n\nRegardless of how a deprivation of liberty arises, the importance of the “great writ of liberty” underlies the general rule that exceptions to the availability of habeas corpus must be limited and carefully defined.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16646,7 +16646,7 @@ "text": "To date, this Court has recognized only two instances where a provincial superior court may decline to hear a habeas corpus application. The first allows a provincial superior court to decline jurisdiction where a prisoner seeks to attack the legality of their conviction or sentence, determinations properly challenged through the appeal mechanisms set out in the Criminal Code (Gamble, at p. 636). The second exception arose in the field of immigration law. In Peiroo, the applicant sought issuance of a writ of habeas corpus with certiorari in aid, contesting a finding that there was no credible basis for her refugee claim and arguing that there was therefore no basis for a removal order issued against her. The Ontario Court of Appeal found that the Immigration Act, R.S.C. 1985, c. I-2, then in force established a comprehensive scheme regulating the determination and review of immigration claims in a manner that was “as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid” (Peiroo, at p. 261).\n\nBoth of these exceptions acknowledge the development of sophisticated procedural vehicles in our modern legal system and their ability to fully protect fundamental rights such as habeas corpus.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16664,7 +16664,7 @@ "text": "Statutory appeals in criminal matters, previously circumscribed by the common law writs of certiorari and error, were introduced some 500 years after habeas corpus (V. M. Del Buono, “The Right to Appeal in Indictable Cases: A Legislative History” (1978), 16 Alta. L.R. 446, at p. 448). Although the Court affirmed the Criminal Code exception in the context of a Charter challenge in Gamble, the rule pre-empting habeas corpus applications where a statutory appeal is available long pre-dates the Charter (see: In re Trepanier (1885), 12 S.C.R. 111; In re Sproule (1886), 12 S.C.R. 140, at p. 204; Goldhar v. The Queen, [1960] S.C.R. 431, at p. 439; Morrison v. The Queen, [1966] S.C.R. 356; Karchesky v. The Queen, [1967] S.C.R. 547, at p. 551; Korponay v. Kulik, [1980] 2 S.C.R. 265).\n\nThe IRPA , for its part, is a product of the rise of the modern administrative state: a parallel justice system established alongside the courts of law to provide accessible, expert, and expeditious adjudication of a broad spectrum of claims. For example, the decision in Pringle v. Fraser, [1972] S.C.R. 821, holding that the Immigration Act, R.S.C. 1952, c. 325, ousted provincial superior court jurisdiction to entertain a writ of certiorari, was an early recognition of the possibility that a legislature could create alternative avenues of review through administrative bodies.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16682,7 +16682,7 @@ "text": "Both of these exceptions target similar concerns, primarily the “need to restrict the growth of collateral methods of attacking convictions or other deprivations of liberty” (May, at para. 35). By affirming such statutory schemes, the standard set out in May ensures the constitutional right to habeas corpus is protected, while also realizing judicial economy, avoiding duplicative proceedings, and reducing the possibility of inconsistent decisions and forum shopping.\n\nAt issue in this appeal is the scope of the Peiroo exception and, more specifically, whether that exception precludes habeas corpus for all determinations made under immigration legislation. The appellant argues that it does, pointing to this Court’s description of the Peiroo exception in May, where we stated: “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded” (May, at para. 40).\n\nIn my view, this statement was never intended to preclude habeas corpus review of every detention arising in the immigration context, whatever the nature of the challenge to the legality of the detention. I do not see May as standing for such a broad proposition. I say this for three reasons.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16700,7 +16700,7 @@ "text": "First, the IRPA was not before the Court in May. In that case, a number of federal prisoners who were transferred from minimum to medium-security institutions brought habeas corpus applications to challenge this transfer to a more restrictive form of custody. The warden of the institution argued that the Corrections and Conditional Release Act , S.C. 1992, c. 20 (CCRA ), set out a comprehensive statutory scheme that provided effective remedies comparable to habeas corpus — a proposition this Court did not accept. In that context, the Court compared the CCRA not to the IRPA (although it was then in force), but rather to the Immigration Act considered in Peiroo. The Court concluded that, unlike the immigration scheme, the corrections statute did not guarantee impartial review, articulate specific and effective remedies, or even provide clear grounds upon which transfer decisions could be reviewed (May, at para. 62).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16718,7 +16718,7 @@ "text": "Second, the jurisprudence relied on by the Court in May — Peiroo, Pringle, and Reza v. Canada, [1994] 2 S.C.R. 394, — did not stand for the broad proposition that habeas corpus will never be available where the detention is related to immigration matters. May must be understood in light of the cases cited; the Court did not purport to extend their holdings. Neither Pringle nor Reza dealt specifically with habeas corpus. Pringle was concerned with certiorari, a writ which, unlike habeas corpus, is not constitutionally protected. Reza did not involve an application for habeas corpus, but a challenge to the constitutionality of the Immigration Act on other grounds. Even Peiroo did not provide that habeas corpus could never lie in the immigration context. It simply determined that the Immigration Act then in force was “as broad as or broader” than habeas corpus for “immigration matters” like Ms. Peiroo’s claim. Ms. Peiroo had argued that the adjudicator erred in finding she had no credible basis for her refugee claim and that her detention was therefore ordered illegally.\n\nFinally, May itself urges us to interpret exceptions to the availability of habeas corpus restrictively: Given the historical importance of habeas corpus in the protection of various liberty interests, jurisprudential developments limiting habeas corpus jurisdiction should be carefully evaluated and should not be allowed to expand unchecked. The exceptions to habeas corpus jurisdiction and the circumstances under which a superior court may decline jurisdiction should be well defined and limited. [para. 50]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16736,7 +16736,7 @@ "text": "For these reasons, I do not think May should be interpreted as holding that the Peiroo exception bars all habeas corpus applications that arise in the immigration context, regardless of the grounds raised to challenge detention.\n\nTwo recent Ontario Court of Appeal cases — Chaudhary and Ogiamien — recognized that the Peiroo exception does not bar all habeas corpus applications targeting a deprivation of liberty that arises from the immigration scheme.\n\nIn Chaudhary, Rouleau J.A., writing for the court, distinguished the case before him from Peiroo by noting that the applicant in Peiroo had challenged aspects of her refugee status itself — an immigration determination for which the IRPA provided review as broad as habeas corpus — whereas the multiple applicants in Chaudhary challenged their detentions on the grounds that the extended duration or indeterminacy of detention offended s. 7 of the Charter . The Court of Appeal concluded that the IRPA was not as broad or advantageous as habeas corpus with respect to such queries. Moreover, the applicants challenged only their detention: the outcome of the applications would have no effect on their immigration status. Ultimately, provincial superior court jurisdiction was a necessary complement to the statutory scheme in order to protect the constitutional right to habeas corpus.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16754,7 +16754,7 @@ "text": "Sharpe J.A. addressed similar facts in Ogiamien, finding that a 25-month detention — on the basis of an outstanding deportation order — was subject to habeas corpus review. Although the court found it was unnecessary to consider Mr. Ogiamien’s contention that he should have been detained in an immigration holding centre rather than in a maximum security facility — given that specific complaint had been dealt with in a separate application — it noted that the principle applied in Chaudhary was not restricted to situations involving lengthy detentions of uncertain duration. Instead, the principle rested upon the Superior Court’s broad residual jurisdiction to entertain habeas corpus applications subject only to the framework set out in May (Ogiamien, at paras. 38-42).\n\nI agree with the Chaudhary and Ogiamien approach, adopted by the Court of Appeal in this case. This approach properly flows from the principles set out by this Court in May.\n\nIn sum, the Peiroo exception can be more clearly articulated as follows: an application for habeas corpus will be precluded only when a complete, comprehensive and expert scheme provides for review that is at least as broad and advantageous as habeas corpus with respect to the challenges raised by the habeas corpus application. An administrative scheme may be sufficient to safeguard the interests protected by habeas corpus with respect to some types of challenges, but may also need to be re-examined with respect to others. It is thus essential to consider how the challenge to the unlawful detention is framed in the habeas corpus application. A. Determining When the Exception Applies", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16772,7 +16772,7 @@ "text": "How, then, does a court determine whether there is “a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous” such that an applicant will be precluded from bringing an application for habeas corpus (May, at para. 40)?\n\nFirst, it is necessary to ask upon what basis the legality of the detention is being challenged. In other words, what are the grounds in the applicant’s habeas corpus application? Reference to the categories in Dumas may be helpful to this inquiry. Is the applicant challenging an initial decision that resulted in detention, such as a removal order? Are they challenging the conditions of their detention? Or are they challenging the length and uncertain duration of their detention? Precisely delineating the grounds for the habeas corpus application is necessary in order to determine whether there is an effective statutory remedy to address those grounds.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16790,7 +16790,7 @@ "text": "Second, it is necessary to ask whether there is a complete, comprehensive and expert scheme that is as broad and advantageous as habeas corpus in relation to the specific grounds in the habeas corpus application. Elements of the IRPA detention review scheme may speak to whether the scheme is complete, comprehensive and expert. However, the main issue in this case, and the focus of the parties’ submissions, is whether IRPA review is as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina challenged the legality of his detention. In this inquiry, it may be helpful to look at whether a statutory scheme fails entirely to include the grounds set out in the application for habeas corpus. If so, the scheme will not be as broad and advantageous as habeas corpus. The scheme will also fail to oust habeas corpus if it provides for review on the grounds in the application, but the review process is not as broad and advantageous as that available through habeas corpus, considering both the nature of the process and any advantages each procedural vehicle may offer.\n\nAs I shall explain, applying this framework to the facts of Mr. Chhina’s case reveals that while the statutory scheme set out in the IRPA , including judicial review, may provide adequate review with respect to some matters, it is unable to effectively address the challenge raised by Mr. Chhina’s application in a manner that is as broad and advantageous as habeas corpus. B. Identifying the Grounds of Mr. Chhina’s Challenge", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16808,7 +16808,7 @@ "text": "The first step is to identify the grounds raised in the habeas corpus application. Mr. Chhina challenged the legality of his detention on two grounds: that he was being held in inappropriate conditions and that the duration of his detention had become indeterminate and overly lengthy. Mr. Chhina argued that the length and duration of his detention violated his rights under ss. 7 and 9 of the Charter because there was no reasonable prospect that the immigration-related purposes justifying his detention would be achieved within a reasonable time. The courts below proceeded on the basis of this second ground: that the lengthy detention of indeterminate duration violated the Charter .\n\nUnlike in Peiroo, Mr. Chhina’s application for habeas corpus had nothing to do with whether his inadmissibility or deportation were rightly or wrongly decided. C. The IRPA Statutory Review Scheme\n\nIn determining whether the scheme provides for review as broad and advantageous as habeas corpus, the court should look at the actual alternatives for detention review realistically available to someone in Mr. Chhina’s circumstances. As this Court stated in May, a “purposive approach . . . requires that we look at the entire context”, which in that case included the relative disadvantages of judicial review in the Federal Court (May, at para. 65). This examination may include any administrative adjudicators, tribunals, and internal appeal mechanisms, as well as available judicial review or statutory appeal routes. In this case, I consider both the Immigration Division and the judicial review processes in the Federal Courts.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16826,7 +16826,7 @@ "text": "I begin first with a general overview of how the IRPA scheme functions before considering whether it offers review as broad and advantageous as habeas corpus. The IRPA provides a detailed scheme to deal with the review of detention in the immigration context. Just as in the criminal context, a deprivation of liberty ordered pursuant to the IRPA must always be justified. Release is the default except where the Minister establishes that: the detainee is a danger to the public or is unlikely to appear at a hearing; the Minister is inquiring as to inadmissibility due to security risks, human rights violations or criminality; or the Minister has concerns about establishing the person’s identity (IRPA , s. 58(1) ). Each of these grounds of detention is determined in accordance with a list of immigration-specific factors set out in the Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 244 to 249 (IRPR).\n\nOnce an initial detention order has been made, the IRPA review process provides for periodic internal review of detention by members of the Immigration Division of the Immigration and Refugee Board, who are appointed in accordance with the Public Service Employment Act, S.C. 2003, c. 22 (IRPA , ss. 151 and 172(2) ). A member of the Immigration Division must conduct an initial review within 48 hours of an individual being taken into immigration custody, as well as a review within the 7 following days, and additional reviews every 30 days thereafter (IRPA , s. 57 ).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16844,7 +16844,7 @@ "text": "The IRPA also explicitly provides for judicial review of those decisions by the Federal Court (IRPA , s. 72 ). An appeal from this judicial review is available to the Federal Court of Appeal on a certified question of general importance (IRPA , s. 74 (d)). All the review processes are intimately linked, as judicial review is circumscribed by the statutory mandate of the original decision-maker.\n\nLastly, it should be noted that immigration officials are experts in applying their statutory mandate. Given its role in judicial review, the Federal Court has also developed significant familiarity with the immigration context and contributes an additional layer of immigration-related expertise.\n\nAs this examination reveals, the review process set out in the IRPA is detailed and clear. The grounds for ordering or continuing detention are clear. Independent review is assured by judicial review through the Federal Courts. Clear remedies, namely release, exist.\n\nHowever, as I shall explain, IRPA proceedings do not provide for review as broad and advantageous as habeas corpus with respect to the specific basis upon which Mr. Chhina has challenged the legality of his detention. D. Is Review Under the IRPA as Broad and Advantageous as Habeas Corpus?\n\nThe scope of review under the IRPA must, of course, actually include the grounds Mr. Chhina has raised.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16862,7 +16862,7 @@ "text": "Once the Minister has established grounds for detention, immigration officers and members of the Immigration Division must consider factors which may weigh in favour of release, set out at s. 248 of the IRPR: (a) the reason for detention; (b) the length of time in detention; (c) whether . . . that detention is likely to continue and, if so, [how long]; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; and (e) the existence of alternatives to detention.\n\nTo this list, the Federal Court of Appeal has added that the decision-maker must be mindful of the principles applicable to s. 7 of the Charter (Canada (Minister of Citizenship & Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572, at para. 14).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16880,7 +16880,7 @@ "text": "Mr. Chhina challenged the length, uncertain duration and conditions of his detention. The conditions in which a person is detained are notably absent from the language of s. 248 of the IRPR. Counsel for the appellant conceded as much, adding that the conditions of detention are properly within the ambit of the provincial correctional authorities or the Canadian Border Services Agency, not the Immigration Division (Brown v. Canada (Citizenship and Immigration), 2017 FC 710, 25 Admin. L.R. (6th) 191, at para. 138). The Immigration Division has no explicit power to examine harsh or illegal conditions. This is to be contrasted with habeas corpus, which provides for review of any unlawful form of detention. The inability of a scheme to respond to the specific ground raised in an application of habeas corpus would mean that the scheme does not preclude habeas corpus. However, this ground of Mr. Chhina’s habeas corpus application was not addressed by the Court of Appeal, nor was it argued before this Court.\n\nIn contrast to the absence of conditions, the regulations do provide for consideration of the length and likely duration of detention (IRPR, s. 248(c) and (d)). The question thus becomes whether review of the length and duration of detention under the IRPA is as broad and advantageous as that available through habeas corpus. This requires consideration of the nature of the review process and any advantages provided by each procedural vehicle.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16898,7 +16898,7 @@ "text": "I conclude that the IRPA does not provide for review as broad and advantageous as habeas corpus where the applicant alleges their immigration detention is unlawful on the grounds that it is lengthy and of uncertain duration. Taken as a whole, the scheme falls short in at least three important ways. First, the onus in detention review under the IRPA is less advantageous to detainees than in habeas corpus proceedings. Second, the scope of review before the Federal Courts is narrower than that of a provincial superior court’s consideration of a habeas corpus application. Third, habeas corpus provides a more timely remedy than that afforded by judicial review.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16916,7 +16916,7 @@ "text": "Under the IRPA, the Minister need only make out a prima facie case for continued detention (e.g., indicate that the detainee is a continued flight risk) in order to shift the onus to the detainee to justify release. While the IRPA places the onus on the Minister to demonstrate a ground for detention (IRPA , s. 58 ), the regulations simply state that the length and likely duration of detention (among other factors) “shall be considered before a decision is made on detention or release” (IRPR, s. 248). The Federal Court has interpreted the regulations as imposing the onus on the detainees to demonstrate that their continued detention would be unlawful in light of the s. 248 factors (Thanabalasingham, at para. 16; Chaudhary, at para. 86; Canada (Public Safety and Emergency Preparedness) v. Lunyamila, 2016 FC 1199, [2017] 3 F.C.R. 428). This understanding of who bears the onus is consistent with the general principle that a Charter applicant bears the onus of establishing a Charter infringement. In addition, while s. 248 provides that an Immigration Division member must consider certain factors, the regulations provide no guidance as to how the length and duration of detention are to be considered and, crucially, when these factors might be outweighed by others — such as the reason for detention. Thus, as Rouleau J.A. has correctly observed, the IRPA does not require the Minister to explain or justify the length and uncertain duration of a detention, because the Minister need only establish one of the grounds at s. 58 of the scheme in order to shift the onus to the detainee (Chaudhary, at para. 86). This contrasts sharply with habeas corpus where, subject to raising a legitimate ground, the onus is on the Minister to justify the legality of the detention in any respect.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16934,7 +16934,7 @@ "text": "As noted by this Court in Mission Institution v. Khela, the onus in habeas corpus is of particular historical significance: This particular shift in onus is unique to the writ of habeas corpus. Shifting the legal burden on the detaining authorities is compatible with the very foundation of the law of habeas corpus, namely that a deprivation of liberty is permissible only if the party effecting the deprivation can demonstrate that it is justified. [para. 40]\n\nFurther, on judicial review to the Federal Court, the onus lies squarely upon the applicant to establish that the decision is unreasonable (Mission Institution v. Khela, at para. 40).\n\nMoreover, under the IRPA the Minister may satisfy its onus by relying on reasons given at a prior detention hearing. This practice has been encouraged by the Federal Courts, which have held that, while previous detention decisions are not binding, “if a member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out” (Thanabalasingham, at para. 10; see also, among others: Canada (Public Safety and Emergency Preparedness) v. Mehmedovic, 2018 FC 729, at para. 19 (CanLII); Canada (Public Safety and Emergency Preparedness) v. Torres, 2017 FC 918, at para. 20 (CanLII); Canada (Minister of Public Safety and Emergency Preparedness) v. Karimi-Arshad, 2010 FC 964, 373 F.T.R. 292, at para. 16). In other words, immigration officials may rely entirely on reasons given by previous officials to order continued detention and remain fully compliant with the IRPA scheme. In practice, the periodic reviews mandated by the IRPA are susceptible to self-referential reasoning, instead of constituting a fresh and independent look at a detainee’s circumstances.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16952,7 +16952,7 @@ "text": "Thus, the scheme fails to provide the detainee with the fresh and focussed review provided by habeas corpus, where the Minister bears the onus. The fresh evidence filed before this Court emphasizes the above points. An external audit commissioned by the chair of the Immigration and Refugee Board offers a timely, and frankly unfortunate, picture of how the scheme is being administered for those in long-term detention. The 2018 audit highlights how, in practice, detainees do not receive the full benefit of the scheme: - in principle, the Immigration Division should place the onus on the Minister to continue detention; in practice they often fail to do so (2017/2018, Audit, at p. 18); - in principle, the Immigration Division should be approaching each detention review afresh; in practice, the Immigration Division is overly reliant on past detention review decisions (2017/2018, Audit, pp. 31-32); - in principle, the Immigration Division should be impartial and independent from the Canadian Border Services Agency; in practice, the Immigration Division often overly relies on the Canada Border Services Agency’s submissions (2017/2018, Audit, pp. 17-18); and - in principle, the Immigration Division should be reviewing IRPA detentions for compliance with ss. 7 , 9 , and 12 of the Charter ; in practice, as a result of their failure to consider each detention review afresh, they do not do so (2017/2018, Audit, pp. 31-32).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16970,7 +16970,7 @@ "text": "The second disadvantage of the IRPA scheme is the scope of review. As a practical matter, the Immigration Division does not conduct a fresh review of each periodic detention, as discussed above; as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus. The broad review provided by habeas corpus grapples with detention as a whole. This case, for example, required a holistic consideration of Mr. Chhina’s Charter rights and how they may have been violated — not by an individual decision but by the overall context of his detention. This type of inquiry is closely tied to the expertise of the provincial superior courts (May, at para. 68; see also Mission Institution v. Khela, at para. 45; Chaudhary, at para. 102). Relief through judicial review on the other hand, may be sought only with respect to a single decision, which in the IRPA context is generally the most recent 30-day review (Federal Courts Rules, SOR/98-106, r. 302).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -16988,7 +16988,7 @@ "text": "Further, the remedies available on judicial review are more limited and less advantageous to a detainee than on habeas corpus. Although the Federal Courts do have limited powers of mandamus — the power to require a decision-maker to take positive action, such as requiring the Immigration Division to release a detainee — I am aware of no cases in which release has been ordered. To the extent that they can exercise this power, the remedy is granted only where “certain relatively rarely occurring prerequisites are met” (Canada (Citizenship and Immigration) v. Tennant, 2018 FCA 132, at para. 28 (CanLII)). Instead, a successful judicial review will generally result in an order for redetermination, requiring further hearings to obtain release and thereby extending detention. This is to be contrasted with habeas corpus, where release is ordered immediately once the relevant authority has failed to justify the deprivation of liberty.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17006,7 +17006,7 @@ "text": "Lastly, habeas corpus provides a more timely remedy than those available through the IRPA . Leave is required for judicial review of a detention decision made under the IRPA , and perfecting an application for leave on judicial review can take up to 85 days (IRPA , s. 72(2) (b); Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, rr. 10(1), 11 and 13). As the Federal Court has acknowledged, even in the best of circumstances, it is thus impracticable for judicial review to occur before the next 30-day detention review has been held, rendering the outcome of the judicial review moot (Canada (Citizenship and Immigration) v. B386, 2011 FC 175, [2012] 4 F.C.R. 220, at para. 13; Chaudhary, at para. 94). The remedy of a rehearing restarts the review process, leading to further delays. This cycle of mootness at the judicial review stage acts as a barrier to timely and effective relief.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17024,7 +17024,7 @@ "text": "In contrast, the importance of habeas corpus as a “swift and imperative remedy” has long been recognized (Mission Institution v. Khela, at para. 3; In re Storgoff, [1945] S.C.R. 526, at p. 591). Courts across the country have acknowledged this by enacting rules that prioritize the hearing of habeas corpus applications. Habeas corpus writs are “returnable immediately” before a superior court judge in Ontario, and the hearing of habeas corpus applications have priority over other business of the court in both Quebec and Nova Scotia (Habeas Corpus Act, R.S.O. 1990, c. H.1, s. 1(1); Code of Civil Procedure, CQLR, c. C-25.01, art. 82 para. 3; Nova Scotia Civil Procedure Rules, r. 7.13(1); see also Criminal Procedure Rules of the Supreme Court of the Northwest Territories, Canada Gazette, SI/98-78, ss. 103 to 107). The advantages habeas corpus offers with respect to timeliness are especially relevant to an application like Mr. Chhina’s, which was primarily concerned with the duration of his detention.\n\nIn sum, the IRPA fails to provide relief that is as broad and advantageous as habeas corpus in response to Mr. Chhina’s challenge to the legality of the length and uncertain duration of his detention. V. Motion to Vary the Record\n\nOn appeal before this Court, the respondent brought a motion to vary the record and file new evidence. This new evidence included a troubling audit that found examples of maladministration within the IRPA scheme, resulting in some detainees being kept in a cycle of long-term detention.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17042,7 +17042,7 @@ "text": "While the evidence was not necessary to resolve this appeal, it is admissible pursuant to Palmer v. The Queen, [1980] 1 S.C.R. 759, at p. 775. The evidence is new, relevant, credible and confirmatory in that it provides statistical evidence supporting the argument that the IRPA scheme is not as broad and advantageous as habeas corpus for lengthy detentions, particularly with regards to the onus borne by the applicant at each successive detention review. In this case, even without regard to this evidence, it was clear that the statutory scheme, including judicial review at the Federal Courts, is not as advantageous as habeas corpus given the nature of the challenge. VI. Conclusion", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17060,7 +17060,7 @@ "text": "Habeas corpus is a fundamental and historic remedy which allows individuals to seek a determination as to the legality of their detention. A provincial superior court should decline its habeas corpus jurisdiction only when faced with a complete, comprehensive and expert scheme which provides review that is at least as broad and advantageous as habeas corpus with respect to the grounds raised by the applicant. Although our legal system continues to evolve, habeas corpus “remains as fundamental to our modern conception of liberty as it was in the days of King John” and any exceptions to its availability must be carefully limited (Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350, at para. 28). The IRPA has been held to be a complete, comprehensive and expert scheme for immigration matters generally, but it is unable to respond to Mr. Chhina’s challenge in a manner that is as broad and advantageous as habeas corpus and the Alberta Court of Queen’s Bench erred in declining to hear Mr. Chhina’s habeas corpus application. For these reasons, I would allow the motion to adduce new evidence and dismiss the appeal with costs on the basis agreed by the parties. The following are the reasons delivered by", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17078,7 +17078,7 @@ "text": "Abella J. (dissenting) — I share the majority’s view that there should be assertive and rigorous scrutiny of the lawfulness of any deprivation of liberty. That is why, in my respectful view, the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (IRPA ), should be interpreted in a way that guarantees the fullest possible range of scrutiny for detention, including the conditions of detention. I see nothing in the language of the Act that precludes such a comprehensive review. In fact, I think the basis for the entire scheme requires it. On the other hand, interpreting it in a way that restricts the contours of the scrutiny unduly interferes with the rights of the detainee and with the legislature’s intention that those rights be fully and generously integrated with the purposes of the whole scheme.\n\nMoreover, interpreting the Act in a way that excludes the possibility of reviewing all aspects of immigration detention, including its conditions and lawfulness, essentially and inappropriately reads out the detention review process in IRPA . Why would any detainee settle for a partial review of his or her detention under IRPA if they could receive a more expansive one under habeas corpus? By narrowing the range of detention review available under IRPA , the majority’s interpretation has the effect of elevating habeas corpus into the only meaningful route offering detainees a full review of their detention. This relegates the Act to a second-best role, and creates a two-tier process of detention review whereby those who choose the Act’s menu are deemed to be consigned to a lesser remedial buffet.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17096,7 +17096,7 @@ "text": "The better approach is to continue to read the language of IRPA in a manner that is as broad and advantageous as habeas corpus and ensures the complete, comprehensive and expert review of immigration detention that it was intended to provide, as all of this Court’s previous jurisprudence has done. It is far more consistent with the purposes of the scheme to breathe the fullest possible remedial life into the Act than to essentially invite detainees to avoid the exclusive scheme and pursue their analogous remedies elsewhere. I. Background\n\nTusif Ur Rehman Chhina was born in Pakistan. He entered Canada in December 2006 and obtained refugee status under a false name. When the Minister of Citizenship and Immigration discovered Mr. Chhina’s misrepresentation, he applied to the Refugee Protection Division of the Immigration and Refugee Board to remove Mr. Chhina’s refugee status.\n\nThe Refugee Protection Division granted the Minister’s application in February 2012. It determined that Mr. Chhina was inadmissible to Canada on the basis of serious criminality, and issued a deportation order against him. In response to the deportation order, the Canadian Border Services Agency began taking steps to obtain the necessary travel documents for Mr. Chhina’s return to Pakistan.\n\nBefore he could be deported from Canada, Mr. Chhina was convicted of various criminal offences and incarcerated for three years. When he was released in April 2013, Mr. Chhina was taken immediately into immigration detention on the grounds that he would likely pose a danger to the public and would be unlikely to appear for his removal from Canada if released.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17114,7 +17114,7 @@ "text": "As required by the Act, a member of the Immigration Division of the Immigration and Refugee Board reviewed Mr. Chhina’s detention within 48 hours of this detention and again within 7 days. Thereafter, the Immigration Division reviewed his detention at least every 30 days. His release was ordered on terms and conditions by Leeann King after a detention review in November 2013. Member King explained: [I]t will be an indeterminate amount of time before Pakistan issues a travel document if they even ever do because there’s no way to know what the holdup is at this point after full cooperation from Mr. Chhina and his family . . . . So what I have to consider is the Regulations under 248 which are borrowed verbatim from the decision of Sahin which relates to section 7 of the Charter and detaining people for lengthy and indeterminate amounts of time when there are alternatives to look at, alternatives to detention that could reduce the risks posed. (A.R., vol. II, at p. 106)\n\nMr. Chhina breached the conditions of his release by failing to report to the Canadian Border Services Agency as required. Border Services issued a warrant for his arrest in December 2013, but Mr. Chhina could not be located for a year. He was finally arrested by the police in December 2014 for crimes committed since his release. He was detained on those criminal charges until November 2015, at which point he was again taken directly into immigration detention.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17132,7 +17132,7 @@ "text": "The Immigration Division reviewed his detention the next day and ordered his continued detention on the bases that he was unlikely to appear for removal from Canada and that he posed a danger to the public. The Immigration Division continued to review Mr. Chhina’s detention as required by ss. 57 and 58 of IRPA and s. 248 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations), which guarantee immigration detainees like Mr. Chhina an opportunity to challenge the lawfulness of their detention before the Immigration Division at least every 30 days.\n\nBorder Services continued its efforts to return Mr. Chhina to Pakistan. It requested travel documents from Pakistan on three occasions over three and one half years. Pakistan did not accede to these requests. While Pakistan had at one time acknowledged that Mr. Chhina was a Pakistani citizen, it subsequently resiled from that position and said it would not issue a travel document because it could not verify Mr. Chhina’s national status. Border Services learned that Pakistan refused to issue a travel document in December 2015 and then made efforts to establish his true identity.\n\nMr. Chhina pursued the statutory remedies available to him to challenge the lawfulness of his continued detention under IRPA . But he also sought to access the alternative remedy of habeas corpus by emphasizing the constitutional nature of his challenge based on ss. 7 , 9 and 12 of the Canadian Charter of Rights and Freedoms .", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17150,7 +17150,7 @@ "text": "The application judge in the Court of Queen’s Bench, Mahoney J., declined to exercise habeas corpus jurisdiction on the basis that the IRPA scheme for immigration detention review provides a complete, comprehensive and expert procedure for the review of Immigration Division decisions. He found that the case was an immigration matter within the jurisdiction and expertise of the Federal Court.\n\nThe Alberta Court of Appeal held that the application judge erred in declining to exercise habeas corpus jurisdiction. In its view, habeas corpus review offers greater advantages to detainees like Mr. Chhina than the IRPA scheme.\n\nThe Alberta Court of Appeal’s decision, which followed and endorsed the Court of Appeal for Ontario’s decision in Chaudhary v. Canada (Minister of Public Safety & Emergency Preparedness) (2015), 127 O.R. (3d) 401 (C.A.), departed from settled law. This Court has repeatedly held that the IRPA scheme for the review of immigration detention decisions is a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than, review by way of habeas corpus. I see no reason to depart from it now. If anything, this case presents an opportunity to confirm that the process and substance of detention reviews under IRPA should be as advantageous as habeas corpus, so that detainees get expeditious access to the fullest possible review of the terms and conditions of their detention. II. Analysis", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17168,7 +17168,7 @@ "text": "Habeas corpus, the traditional route to assessing the lawfulness of deprivations of liberty, has historic roots which have spawned a variety of statutory remedies whose goal is to preserve the same protections. These can be found, among other statutes, in the Criminal Code , R.S.C. 1985, c. C-46 , which confers jurisdiction on appellate courts to correct the errors of a lower court and release the applicant (see, for example, R. v. Gamble, [1988] 2 S.C.R. 595, at pp. 636-37; R. v. Pearson, [1992] 3 S.C.R. 665 (bail review); Staetter v. British Columbia (Adult Forensic Psychiatric Services), 2017 BCCA 68 (Review Board custodial dispositions)).\n\nThey are also found in IRPA . Their legitimacy as a genuine alternative to habeas corpus was judicially considered and endorsed in Pringle v. Fraser, [1972] S.C.R. 821; Peiroo v. Canada (Minister of Employment & Immigration) (1989), 69 O.R. (2d) 253 (C.A.), leave to appeal refused, [1989] 2 S.C.R. x; Reza v. Canada, [1994] 2 S.C.R. 394; May v. Ferndale Institution, [2005] 3 S.C.R. 809. Each of these decisions emphasized that the habeas corpus-like remedies available in what was intended to be an exclusive statutory scheme, were “as broad as or broader than the traditional scope of review by way of habeas corpus” (Peiroo, at p. 261).\n\nThe issue in this appeal is whether that remains the case, namely, that the immigration scheme is able to continue to provide as fulsome a package of protections as does habeas corpus, or whether the scheme no longer provides analogous benefits, thereby justifying a departure from our jurisprudence.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17186,7 +17186,7 @@ "text": "Statutory schemes like IRPA that replace habeas corpus with equally effective remedies have long been upheld (Judith Farbey and Robert J. Sharpe, with Simon Atrill, The Law of Habeas Corpus (3rd ed. 2011), at p. 49). As the Court of Appeal for Ontario recently observed in Ogiamien v. Ontario (Community Safety and Correctional Services) (2017), 55 Imm. L.R. (4th) 220 (Ont. C.A.), habeas corpus cannot be used to mount a collateral attack on immigration decisions for which a comprehensive review process exists (para. 14).\n\nThe statutory scheme for immigration detention review set out in IRPA , together with the Regulations and the Immigration Division Rules, SOR/2002-229, mandates prompt, regular, accessible and Charter-compliant review of immigration detention decisions by the Immigration Division of the Immigration and Refugee Board, an independent, quasi-judicial administrative tribunal with specialized knowledge of immigration matters, including immigration detention.\n\nThe IRPA scheme was intended to provide the same fulsome, Charter-compliant review of immigration detention as habeas corpus. Section 3(3) (d) of IRPA codifies the Immigration Division members’ obligation to exercise their discretion in accordance with the Charter ; Application (3) This Act is to be construed and applied in a manner that . . . (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;", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17204,7 +17204,7 @@ "text": "This means that the Charter governs the exercise of discretion under the Act and informs the interpretation of its provisions in a manner that allows for the fullest possible review of a detainee’s loss of liberty. The Act must therefore be interpreted in a way that does not circumscribe its purposes but instead gives it the widest possible scope for implementing its objectives through rigorous substantive detention review. The application of the Charter to the IRPA scheme guarantees the full panoply of rights to detained individuals. This extends to matters of timeliness and access to the statutory remedies, the nature of the review, onus and expertise.\n\nThe suggestion that a full review of detention can only occur under habeas corpus is a bow to the seductive attraction of the label without recognizing that it unnecessarily fetters the comprehensive review of the lawfulness of detention provided in the Act. It also departs from a long-standing jurisprudential consensus: that the IRPA scheme for the review of immigration detention decisions provides a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. In my respectful view, there is no principled reason to abandon the sound logic in Pringle, Peiroo, Reza and May.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17222,7 +17222,7 @@ "text": "At the time Pringle was decided in 1972, the Immigration Appeal Board Act, S.C. 1966-67, c. 90, had recently been amended to provide a scheme for the review of deportation orders by the Immigration Appeal Board, an independent administrative tribunal vested with all the powers of a superior court of record. The applicant appealed to the Board after an immigration official issued a deportation order against him. At the same time, he commenced certiorari proceedings in the superior court to have the deportation order quashed. His application for certiorari was dismissed at first instance but granted on appeal to the Court of Appeal for Ontario. Before this Court, the appeal turned on whether the superior court had certiorari jurisdiction to quash a deportation order made pursuant to the Immigration Act, R.S.C. 1952, c. 325.\n\nLaskin J. concluded that amendments to the Immigration Appeal Board Act establishing the Immigration Appeal Board and conferring certain power to it had “brought into the law a wider avenue for initial appeal from deportation orders than theretofore existed” (p. 825). He wrote: [The Immigration Appeal Board Act] and the Immigration Act, and the Regulations promulgated under each of them, constitute a code for the administration of immigration matters and for the review of proceedings in such matters. There is no common law of immigration. Parliament’s authority to establish such a code is not challenged; nor is Parliament’s authority to deny or remove certiorari jurisdiction from provincial superior courts over deportation orders. [p. 825]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17240,7 +17240,7 @@ "text": "Laskin J. held that the amended Immigration Appeal Board Act, with its new scheme for the administrative review of immigration deportation orders, ousted the certiorari jurisdiction of the superior court. He rejected the contention that Parliament, in enacting the new immigration scheme, had not clearly expressed an intention that the scheme should remove certiorari jurisdiction from the provincial superior courts. On the contrary, he saw s. 22 of the scheme as expressly endowing the Immigration Appeal Board with “sole and exclusive jurisdiction to hear and determine all questions of fact or law, including questions of jurisdiction”. In Laskin J.’s view, the plain meaning of the statute was to exclude any other court or tribunal from entertaining the same proceedings: The result I would reach goes beyond literal justification in the language of s. 22. The facts of the present case show the incompatibility of the appellate jurisdiction vested in the Board with the survival of certiorari in provincial superior courts. It was not suggested that the appeal to the Board would be aborted by proceedings to quash taken in the Supreme Court of Ontario. In fact, Fraser did not abandon his appeal upon taking certiorari proceedings. However, I do not propose to deal with this case as if an election of remedies had been made and that this must determine the outcome. Certainly, the likelihood of two conflicting decisions (each ultimately appealable to this Court) has nothing to commend it. The only practical resolution is to recognize the exclusiveness of the special procedure ordained by Parliament. [p. 827]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17258,7 +17258,7 @@ "text": "Laskin J. compared certiorari to habeas corpus, holding that both are remedial proceedings whose “availability may depend on whether [they are] prescribed as a remedy by the competent legislature” (p. 826, citing In re Storgoff, [1945] S.C.R. 526). These remedies have “no necessary ongoing life in relation to all matters for which [they] could be used, if competent excluding legislation is enacted” (pp. 826-27).\n\nThe principles articulated in Pringle were adopted in Peiroo. In Peiroo, the applicant made a refugee claim in Canada. The Convention Refugee Determination Division of the Immigration and Refugee Board determined there was no credible basis to her claim and issued a removal order pursuant to the provisions of what was then the Immigration Act, R.S.C. 1985, c. I-2. Ms. Peiroo was placed in immigration detention. She sought to contest the finding of no credible basis and the removal order by applying to the provincial superior court for habeas corpus with certiorari in aid. Her application was dismissed and she appealed to the Court of Appeal for Ontario.\n\nThe Court of Appeal considered whether it should decline to exercise its habeas corpus jurisdiction to review Ms. Peiroo’s detention in favour of the alternative remedies available to her to challenge the impugned immigration decisions. Catzman J.A., writing for the court, noted that habeas corpus is an extraordinary remedy that does not generally lie where there is an alternative remedy available (see Peiroo, at p. 257, citing Cameron Harvey, The Law of Habeas Corpus in Canada (1974), at p. 13; Roger Salhany, Canadian Criminal Procedure (4th ed. 1984), at p. 521).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17276,7 +17276,7 @@ "text": "Catzman J.A. compared habeas corpus with the available remedies under the Immigration Act to challenge removal orders and credible basis findings. The Act expressly provided for an appeal with leave to the Federal Court of Canada. Catzman J.A. observed that the grounds and scope of review set out in the appeal provisions of the Federal Court Act , R.S.C. 1985, c. F-7 , “are as broad as, and — in the power to examine erroneous findings of fact — probably broader than, those on which the [superior court] exercises its jurisdiction on applications for habeas corpus with certiorari in aid” (p. 258).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17294,7 +17294,7 @@ "text": "Catzman J.A. concluded that the review and appeal mechanisms contemplated in the Act were “as broad as or broader than the traditional scope of review by way of habeas corpus”. As a result, the statutory scheme did not run afoul of the principle that individuals “should not be refused the ancient remedy of habeas corpus on account of the availability of some less expeditious and advantageous alternative remedy” (p. 258, citing R. v. Governor of Pentonville Prison, ex parte Azam, [1973] 2 All E.R. 741 (C.A.), at p. 758, aff’d [1973] 2 All E.R. 765 (H.L.)). He explained: Parliament has established in the [Immigration Act], particularly in the recent amendments which specifically address the disposition of claims of persons in the position of the appellant, a comprehensive scheme to regulate the determination of such claims and to provide for review and appeal in the Federal Court of Canada of decisions and orders made under the Act, the ambit of which review and appeal is as broad as or broader than the traditional scope of review by way of habeas corpus with certiorari in aid. In the absence of any showing that the available review and appeal process established by Parliament is inappropriate or less advantageous than the habeas corpus jurisdiction of the [provincial superior court], it is my view that this court should, in the exercise of its discretion, decline to grant relief upon the application for habeas corpus in the present case, which clearly falls within the purview of that statutory review and appeal process.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17312,7 +17312,7 @@ "text": "I am fortified in this conclusion by the observation that similar considerations appear to have moved the Supreme Court of Canada to hold that where there is a legislative initiative purporting to provide a whole scheme or code for the administration and review of proceedings in a field like immigration (Pringle v. Fraser . . . [1972] S.C.R. 821), or human rights (Board of Governors of Seneca College of Applied Arts & Technology v. Bhadauria . . . [1981] 2 S.C.R. 181 . . .), such a scheme should not be by-passed, either by evolving a new cause of action (as in Bhadauria) or by the use of a prerogative writ (as in Pringle). Both jurisprudence and logic would suggest that this Court should leave the review of immigration matters with the Federal Court of Canada, which has review and appeal jurisdiction with respect to many aspects of immigration law and which has geographical jurisdiction throughout Canada, and thus can deal with claims of refugee claimants wherever their point of entry. [pp. 261-62]\n\nThis became known as “the Peiroo exception”, namely, where Parliament has put in place a complete, comprehensive and expert statutory scheme providing for review of detention that is at least as broad as, and no less advantageous than habeas corpus review, superior courts should decline to exercise their habeas corpus jurisdiction in favour of that statutory scheme.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17330,7 +17330,7 @@ "text": "This Court applied the Peiroo exception in Reza. Like Peiroo, Reza involved a refugee claim. Mr. Reza claimed protection in Canada as a Convention refugee. A tribunal established under the Transitional Provisions of the Immigration Act, R.S.C. 1985, c. 28 (4th Supp.), determined that there was no credible basis to his claim and issued a deportation order against him. Mr. Reza was unsuccessful at his review by an immigration officer on humanitarian grounds and sought leave to commence judicial review of the immigration officer’s decision in the Federal Court.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17348,7 +17348,7 @@ "text": "Mr. Reza subsequently challenged the constitutionality of the Immigration Act in the superior court. The motion judge stayed the constitutional challenge because the Federal Court had concurrent jurisdiction and was the more appropriate forum for the challenge. Concluding that he was bound by Peiroo, he said: In the absence of any showing that the available review process and appeal process is inappropriate or less advantageous than the habeas corpus jurisdiction of this Court, this Court should, in the exercise of its discretion, decline to grant relief on a habeas corpus application. Both jurisprudence and logic would support that this Court should leave the review of the immigration matters with the Federal Court of Canada: Re Peiroo (1989), 69 O.R. (2d) 253 (O.C.A.). To the same effect is the C.A. decision in Sheperd (1989) 52 C.C.C. (3d) 386. I am of course bound by these decisions. The case at bar does not involve an application for habeas corpus relief, but the relief sought, by way of declaration and injunctive relief, is also discretionary in this Court. The Federal Court has jurisdiction to grant the relief sought in this application and in my view the principles set out by the C.A. in Peiroo and in Sheperd are applicable to the case at bar. The circumstances described by Campbell in Bembeneck 69 C.C.C. (3d) 34 which influenced the Court to take jurisdiction, are not present here. As to whether the process is less advantageous in the Federal Court, as indicated, the relief is available in that Court and in my view the requirement of leave in that Court to make a claim for a declaratory judgment does not make the process less advantageous . . . . Accordingly, it is my view that this proceeding should be stayed and I so order. [pp. 399-400]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17366,7 +17366,7 @@ "text": "A majority in the Court of Appeal for Ontario reversed the motion judge’s decision. This Court allowed the appeal on the basis of the comprehensive scheme dealing with the same issues. The Immigration Act in force at the time gave the Federal Court an exclusive statutory mandate over immigration matters. As in Peiroo, the Court found that Parliament, in enacting the Immigration Act and granting exclusive jurisdiction to the Federal Court, intended the Federal Court to be the appropriate forum for deciding immigration cases. This weighed against the exercise of concurrent jurisdiction, suggesting instead that the statutory grant of exclusive jurisdiction to the Federal Court demonstrated legislative intent to bar individuals from pursuing parallel remedies in the superior courts.\n\nSecond, the factors of expertise and experience also favoured the Federal Court’s exclusive mandate over immigration matters. The Federal Court has expertise in immigration law, administrative law, and Federal Court procedure. While on the surface Mr. Reza’s case appeared to be a constitutional one, at its core the nature of the Charter challenge was fundamentally linked with immigration policy and process.\n\nThird, superior courts should decline to exercise jurisdiction in immigration cases where the Federal Court has concurrent jurisdiction to avoid issues of forum-shopping, inconsistent decision making and multiplicity of proceedings (see also Reference re Constitution Act, 1867, s. 92(10)(a) (1988), 64 O.R. (2d) 393 (C.A.)).\n\nThe motion judge had therefore rightly declined to exercise jurisdiction on the basis that Parliament had created a comprehensive scheme of review of immigration matters and the Federal Court was an effective and appropriate forum.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17384,7 +17384,7 @@ "text": "This Court considered Pringle, Peiroo and Reza in May. In May, we confirmed two exceptions to the availability of habeas corpus: it is not available to challenge the legality of a criminal conviction where a statute provides for a right of appeal; and it is not available “in matters of immigration law, because Parliament has put in place a complete, comprehensive and expert statutory scheme which provides for a review at least as broad as that available by way of habeas corpus and no less advantageous, habeas corpus is precluded”, namely the Peiroo exception (para. 40).\n\nThe grievance procedures under s. 81(1) of the Corrections and Conditional Release Regulations, SOR/92-620, were at issue in May: 81 (1) Where an offender decides to pursue a legal remedy for the offender’s complaint or grievance in addition to the complaint and grievance procedure referred to in these Regulations, the review of the complaint or grievance pursuant to these Regulations shall be deferred until a decision on the alternate remedy is rendered or the offender decides to abandon the alternate remedy.\n\nThe Court concluded that this language did not reveal a legislative intention to oust the superior courts’ habeas corpus jurisdiction (para. 60). Instead, the statute was found to contemplate that an inmate may choose to pursue a remedy like habeas corpus in addition to filing an administrative grievance. The language reflected a legislative intent that the statutory scheme operate in conjunction with the superior courts’ habeas corpus jurisdiction.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17402,7 +17402,7 @@ "text": "The Court held that for immigration detainees seeking to challenge their continued detention as a violation of their Charter rights, the IRPA scheme governing matters of immigration law was a complete, comprehensive and expert scheme that is at least as broad as, and no less advantageous than review by way of habeas corpus in terms of expertise, onus, the nature of the remedy, and timeliness. Provincial superior courts should, as a result, decline to exercise their concurrent jurisdiction to review immigration detention by way of habeas corpus in favour of review before the Immigration Division and the Federal Court under the IRPA scheme.\n\nSection 162(1) of IRPA confirms the clear legislative intent to grant exclusive original jurisdiction to the Immigration Division over immigration matters: Sole and exclusive jurisdiction 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. In Pringle, Laskin J. found that this language barred courts from entertaining the types of immigration proceedings over which the Board had been granted exclusive statutory authority. This specialized and exclusive expertise underlies the Peiroo exception to the availability of habeas corpus review in immigration matters.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17420,7 +17420,7 @@ "text": "This Court has consistently endorsed the Peiroo exception limiting the availability of habeas corpus review for immigration matters. In the absence of evidence that the “complete, comprehensive and expert statutory scheme” does not provide for a review at least as broad and no less advantageous than habeas corpus, I see no reason to disturb the Court’s jurisprudence by opening an alternative route, one that will lead to the forum shopping, inconsistent decision making, and multiplicity of proceedings the Court warned against in Reza. There is nothing in the language of the statutory scheme that restricts the scope of IRPA detention review to a partial review which must be supplemented by habeas corpus. On the contrary, the IRPA scheme is structured to provide detainees with at least the same rights they would receive on habeas corpus review.\n\nTo begin, the IRPA scheme for immigration detention review provides that all detentions must be reviewed regularly. Individuals detained for immigration purposes have the right to appear before the Immigration Division within 48 hours following their initial detention (s. 57(1)). A second review must take place during the next 7 days, and regular reviews at least once every 30 days thereafter (s. 57(2)). The detainee may make an application to the Immigration Division requesting a detention review before the expiry of the 7 or 30-day period (Immigration Division Rules, r. 9). Review hearings are structured to be expeditious and accessible, and they must be dealt with as informally and quickly as the circumstances and considerations of fairness and natural justice permit.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17438,7 +17438,7 @@ "text": "The IRPA scheme provides that immigration officers are responsible for bringing the detainee before the Immigration Division for all review hearings (s. 57(3)). The Immigration Division has a corresponding power to order immigration officials to bring the detainee to a location specified by the Division (Immigration Division Rules, r. 23). The Immigration Division can also facilitate access to the remedy by requiring the parties to appear at a conference to discuss any matter that would make the proceedings more fair and efficient, or to participate in scheduling the proceedings (Immigration Division Rules, rr. 20(1) and 21).\n\nUpon conducting a detention review, the Immigration Division may order the continued detention of a detainee, their unconditional release, or their release on any conditions the Immigration Division considers necessary. The Immigration Division makes its decisions in furtherance of the purposes of IRPA , which include protecting public safety and maintaining the security of Canadian society (s. 3(1)(h)).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17456,7 +17456,7 @@ "text": "While the majority of detention review hearings occur before the Immigration Division, a detainee who is dissatisfied with the Immigration Division’s decision, whether on Charter grounds or otherwise, may apply for leave and judicial review to the Federal Court (IRPA , s. 72(1)). I agree with the comments of Catzman J.A. in Peiroo, rejecting the argument that the requirement for leave to appeal immigration decisions to the Federal Court rendered that remedy less advantageous than habeas corpus, where leave is not required. Catzman J.A. wrote: I consider the suggested distinction to be more apparent than real. In order to succeed on an application for habeas corpus, an applicant must show reasonable and probable ground for his complaint: Habeas Corpus Act, R.S.O. 1980, c. 193, s. 1(1). The requirement for leave imposed by s. 83.1(1) is clearly intended to be one of a series of screening mechanisms created by the Act to discour[a]ge the assertion of spurious or meritless claims. I have difficulty accepting that an applicant who is in a position to show reasonable and probable ground for complaint regarding the decision or order in respect of which he seeks review would fail to be accorded the requisite leave to bring an application for such review. Indeed, counsel have advised that such leave was granted in the present case . . . . [p. 259]\n\nMr. Chhina’s application for judicial review before the Federal Court was, in fact, expedited. It took one week less to be heard and decided than his application for habeas corpus before the Alberta Court of Queen’s Bench.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17474,7 +17474,7 @@ "text": "In any event, the requirement for leave to appeal to the Federal Court does not change the nature of the comprehensive detention review process under IRPA , which is governed by s. 58 of IRPA and s. 248 of the Regulations. The Immigration Division must order the release of a detainee unless the Minister has satisfied the Immigration Division that one or more of the grounds in s. 58(1) of IRPA are met: (a) The detainee is a danger to the public; (b) The detainee 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; (c) The Minister is taking necessary steps to inquire into a reasonable suspicion that the detainee is inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) The detainee’s identity has not been, but may be, established; or (e) If the detainee is a designated foreign national, the Minister is of the opinion that the identity of the detainee has not been established.\n\nIf s. 58 grounds are established, s. 248 of the Regulations requires the Immigration Division to consider the following additional factors to determine if detention should continue: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17492,7 +17492,7 @@ "text": "The factors in s. 248 of the Regulations codify the factors articulated by Rothstein J. in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 (T.D.). The s. 248 factors were endorsed by this Court in Charkaoui v. Canada (Citizenship and Immigration), [2007] 1 S.C.R. 350. They ensure that extended periods of detention do not violate the Charter .\n\nAs Rothstein J. noted in Sahin, through IRPA , “Parliament has dealt with the right of society to be protected from those who pose a danger to society and the right of Canada to control who enters and remains in this country” (p. 229). To achieve these purposes, the IRPA scheme confers upon members of the Immigration Division the power to detain individuals in anticipation of their likely danger to the public or likely failure to appear for removal from Canada.\n\nWhen making a decision as to whether to detain or release an individual under IRPA , Immigration Division members must always exercise their discretion in a way that accords with the Charter (see IRPA , s. 3(3)(d) ). There is a statutory presumption in favour of release before the Immigration Division, which “shall order the release” of a detainee unless it is satisfied that at least one of the grounds set out in s. 58 of IRPA is met, taking into account the factors in s. 248 of the Regulations.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17510,7 +17510,7 @@ "text": "Significantly, the mandatory s. 248 inquiry on review before the Immigration Division requires the Division to assess the lawfulness of ongoing immigration detention without placing any onus on the detainee. Unlike habeas corpus applications, where the detainee must raise a legitimate ground upon which to question the lawfulness of his or her detention, the Minister bears the onus throughout of justifying the detention before the Immigration Division. The detainee bears no onus to produce evidence as to any of the factors enunciated in s. 58 of IRPA or s. 248 of the Regulations.\n\nTo the extent that the Federal Court of Appeal in Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, [2004] 3 F.C.R. 572, and the Court of Appeal for Ontario in Chaudhary reached the contrary conclusion, they were, in my respectful view, wrongly decided. Moreover, the holding in Chaudhary that the Minister can satisfy his or her onus before the Immigration Division “simply by relying on the reasons given at prior detention hearings” (para. 87) is inconsistent with the Immigration Division’s obligation to conduct a fresh inquiry into the lawfulness of detention at each review. At each Immigration Division hearing, detainees are entitled to the same fresh review of their detention as they would be on habeas corpus review. In cases like Mr. Chhina’s, the Immigration Division must always reassess the prior evidence in light of the detainee’s Charter arguments.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17528,7 +17528,7 @@ "text": "In particular, where a detainee challenges their detention as a violation of the Charter , the time between the prior and present review hearing will constitute new evidence that must inform the Immigration Division’s application of s. 58 of IRPA and s. 248 of the Regulations. It is not enough for the Minister to rely on previous Immigration Division decisions to satisfy the Immigration Division on the s. 58 and s. 248 inquiry. The integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing.\n\nThe Charter both guides the exercise of discretionary administrative decision making under IRPA and informs our interpretation of the scheme itself. The IRPA scheme must therefore be interpreted harmoniously with the Charter values that shape the contours of its application. As Justices Iacobucci and Arbour stated in Application under s. 83.28 of the Criminal Code (Re), [2004] 2 S.C.R. 248: The modern approach [to statutory interpretation] recognizes the multi-faceted nature of statutory interpretation. Textual considerations must be read in concert with legislative intent and established legal norms. Underlying this approach is the presumption that legislation is enacted to comply with constitutional norms, including the rights and freedoms enshrined in the Charter . . . . This presumption acknowledges the centrality of constitutional values in the legislative process, and more broadly, in the political and legal culture of Canada. [paras. 34-35]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17546,7 +17546,7 @@ "text": "Importing Charter principles into the exercise of administrative discretion under IRPA requires that Immigration Division members apply the scheme in a manner that is at least as rigorous and fair as habeas corpus review. It is not enough that a statutory scheme is as broad and advantageous on paper as habeas corpus review, the scheme must also be applied in a manner that preserves the rights of detainees and the integrity of the process in the most comprehensive way possible.\n\nThat means that in carrying out their duties under the IRPA scheme, members of the Immigration Division must ensure the fullest possible review of immigration detention. This includes, and has always included, an obligation to weigh the purposes served by immigration detention against the detained individual’s ss. 7 , 9 and 12 Charter rights. The Immigration Division’s inquiry into the lawfulness of detention must take into account the detained individual’s s. 7 Charter right not to be deprived of liberty except in accordance with the principles of fundamental justice, his or her s. 9 right not to be arbitrarily detained or imprisoned, and the s. 12 right not to be subjected to cruel and unusual treatment or punishment. As Rothstein J. observed in Sahin, “it is not the words of [IRPA ] that vest adjudicators with such jurisdiction, but rather, the application of Charter principles to the exercise of discretion under [the scheme]” (p. 230).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17564,7 +17564,7 @@ "text": "That, in my respectful view, necessarily includes the Immigration Division’s ability to consider the conditions of detention. A comprehensive, Charter-infused analysis of immigration detention may reveal that the length or conditions of detention are such that continued detention is not in accordance with the principles of fundamental justice (s. 7), is arbitrary because it is no longer reasonably furthering the state objective (s. 9) and/or amounts to cruel and unusual punishment (s. 12). The application of ss. 7 , 9 and 12 of the Charter to the IRPA scheme brings to light the Immigration Division’s obligation to assess the length, future duration and conditions of detention when balancing the state’s objectives against the detained individual’s rights.\n\nThe IRPA scheme therefore ensures the protection of other Charter rights by calling on the Immigration Division to consider whether detentions have become unlawful because of their length, uncertain duration and conditions. There is no principled reason to interpret the review provisions in a way that precludes scrutiny of conditions. Why apply a narrow, constrictive interpretation of a remedial statute when a wider, more protective interpretation is not only available, it is mandated by the purposes underlying the scheme. As these reasons seek to clarify, the s. 248 factors guide the Immigration Division in assessing whether ongoing detention is justified pursuant to the Charter based on: (a) The reason for detention; (b) Length of time in detention; (c) Factors that may assist in determining how long detention is likely to continue; (d) Delays or lack of diligence on the detainee or the government’s part; and (e) Alternatives to detention.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17582,7 +17582,7 @@ "text": "Section 248(a) requires the Immigration Division to weigh the state’s immigration objectives against the detained individual’s right to be free from arbitrary or indefinite restraints on liberty. As in habeas corpus review assessing compliance with the Charter , the Immigration Division must assess the strength of the reason for detention. A prior, fact-driven Immigration Division determination that the individual constitutes a flight risk or a danger to the public is entitled to deference on both IRPA and habeas corpus review (see Thanabalasingham, at para. 10 (IRPA review) and Brown v. Canada (Public Safety) (2018), 420 D.L.R. (4th) 124 (Ont. C.A.), at para. 29 (habeas corpus review)). The greater the danger posed to the public, the stronger the justification for ongoing detention (Sahin, at p. 231 (IRPA review); Ali v. Canada (Minister of Public Safety and Emergency Preparedness) (2017), 137 O.R. (3d) 498 (C.A.), at para. 24 (habeas corpus review)).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17600,7 +17600,7 @@ "text": "As for s. 248(b), the justification for continued detention decreases as the length of time in detention increases. The Immigration Division must accord “significant weight” to the length of detention (see Sahin, at pp. 231-32). The strength of an immigration detainee’s argument that his ongoing detention has become a violation of the Charter increases with each subsequent review hearing. The detaining authorities bear a correlative onus to justify continued detention in the face of a continually solidifying Charter claim. A longer period of detention signifies that immigration authorities have had more time to effect removal, which they are expected to do as soon as reasonably possible. Accordingly, the evidentiary burden on the detaining authority to justify continued immigration detention increases as the length of detention increases. This approach to the length of detention is no different from habeas corpus (see Chaudhary, Ali and Brown).\n\nThe anticipated future length of detention in s. 248(c) of the Regulations requires an estimation of how long detention is likely to continue. A detention that is lawful for the purpose of removal may become arbitrary and in violation of s. 9 of the Charter when it becomes unhinged from its immigration-related purpose. Where removal appears unlikely and the future duration of detention cannot be ascertained, this is a factor that weighs in favour of release (Sahin, at p. 231; Charkaoui, at para. 115).", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17618,7 +17618,7 @@ "text": "That is the same inquiry as in habeas corpus review. As Rouleau J.A. noted in Chaudhary: A detention cannot be justified if it is no longer reasonably necessary to further the machinery of immigration control. Where there is no reasonable prospect that the detention’s immigration-related purposes will be achieved within a reasonable time (with what is reasonable depending on the circumstances), a continued detention will violate the detainee’s ss. 7 and 9 Charter rights and no longer be legal. [para. 81]\n\nThe Immigration Division is, moreover, better positioned to assess and address the future duration of detention than the superior courts on habeas corpus review. As Létourneau J.A. held for the court in Canada (Minister of Citizenship and Immigration) v. Li, [2010] 2 F.C.R. 433 (C.A.), the short 30-day period between each Immigration Division review “allows for an estimation based on actual facts and pending proceedings instead of an estimation based on speculation as to potential facts and proceedings” (para. 66). The Immigration Division obtains an accurate picture of the detention every 30 days. It can assess progress over time by reviewing past proceedings and anticipating pending proceedings to guard against a violation of the detainee’s Charter rights.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17636,7 +17636,7 @@ "text": "Section 248(d) requires a consideration of delays or lack of diligence on the part of the detained individual or the immigration authorities. As Rothstein J. held in Sahin and this Court held in Charkaoui, unexplained delay or lack of diligence should count against the offending party (Sahin, at p. 231; Charkaoui, at para. 114). Superior courts reviewing immigration detention for compliance with ss. 7 , 9 and 12 of the Charter undertake the same inquiry. They look to the complexity of effecting the applicant’s removal from Canada, the reasonableness of the steps taken by immigration authorities to effect removal, and the extent to which the applicant has prolonged their detention by failing to cooperate with immigration authorities’ removal efforts (see Brown, at para. 36; Canada v. Dadzie, 2016 ONSC 6045, at para. 46 (CanLII)).\n\nIn Dadzie, a foreign national detained under IRPA applied to be released by way of habeas corpus. Clark J. applied the Charkaoui and Sahin principles about delay and diligence in immigration review in the habeas corpus context (para. 36). Mr. Dadzie’s lack of cooperation led Clark J. to conclude that Mr. Dadzie had not met his onus of showing that his detention had been exceptionally lengthy.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17654,7 +17654,7 @@ "text": "Finally, s. 248(e) of the Regulations requires the Immigration Division to consider alternatives to detention. Alternatives to detention include outright release; a bond or guarantee; reporting requirements; confinement to a specific geographic area; and detention in a less restrictive form (Sahin, at p. 231). An assessment of the conditions of detention is a vital component of the inquiry into alternatives to detention under s. 248(e). Given the Immigration Division’s statutory mandate to assess alternatives to detention; the requirement to make Charter-compliant decisions; and its ability to exercise discretion as to the terms of release, the Division’s power to release a detainee on conditions must include an ability to modify the conditions of detention. Like the provincial superior courts on habeas corpus review, Immigration Division members must be taken to have the power to release the detainee from a “prison within a prison” pursuant to s. 58(3) (see R. v. Miller, [1985] 2 S.C.R. 613, at p. 637, per Le Dain J.; Robert J. Sharpe, The Law of Habeas Corpus (1976), at p. 149).\n\nIn sum, the process of review before the Immigration Division governed by s. 58 of IRPA and s. 248 of the Regulations demands that the Division consider the reasons for detention; the length of time in detention; the anticipated future length of detention; delays or lack of diligence; and the availability, effectiveness and appropriateness of alternatives to detention, including changes in the conditions of detention. These are the same considerations that superior courts weigh to assess whether ongoing immigration detention violates ss. 7 , 9 or 12 of the Charter on habeas corpus review.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17672,7 +17672,7 @@ "text": "The Immigration Division has the same constitutional mandate as well as an overarching duty to give effect to “a legislative initiative purporting to provide a whole scheme . . . for the administration and review of proceedings in . . . immigration” (Peiroo, at p. 262; see also Reza v. Canada (1992), 11 O.R. (3d) 65 (C.A.), at p. 80). Mr. Chhina is attempting to ignore the body explicitly and exclusively tasked with carrying out the purposes of IRPA by wrapping his immigration detention with a Charter ribbon.\n\nThis Court in Reza rejected the applicant’s similar attempt to bypass the immigration scheme in search of a favourable constitutional disposition. In so doing, we acknowledged that the expertise of the Immigration Division in immigration matters extends to the constitutional aspects of immigration matters. As La Forest J. wrote in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5: It must be emphasized that the process of Charter decision making is not confined to abstract ruminations on constitutional theory. In the case of Charter matters which arise in a particular regulatory context, the ability of the decision maker to analyze competing policy concerns is critical . . . . . . . It is apparent, then, that an expert tribunal . . . can bring its specialized expertise to bear in a very functional and productive way in the determination of Charter issues which make demands on such expertise. [pp. 16-18]", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -17690,7 +17690,7 @@ "text": "Despite Mr. Reza’s attempt to recast his challenge as a constitutional one, the Court recognized that his Charter arguments were fundamentally grounded in immigration policy. The same is true of Mr. Chhina’s Charter complaints, which arose in relation to the Immigration Division’s decisions to continue his detention. These are matters which lie at the heart of immigration policy. The Immigration Division is the most appropriate forum to integrate Charter rights within the overall scheme and purposes of IRPA .\n\nProperly interpreted, it is clear from the preceding review that the IRPA scheme for the review of immigration detention offers a remedy to detainees that is at least as broad, and no less advantageous than review by way of habeas corpus. It provides for the fullest possible review of the merits of a challenge to immigration detention. And where an individual is subject to an immigration detention that is said to violate his or her ss. 7 , 9 and 12 Charter rights, the Immigration Division’s review process, guided by s. 58 of IRPA and s. 248 of the Regulations, allows for at least the same substantive assessment as that undertaken by superior courts on habeas corpus review.\n\nThis Court has repeatedly affirmed that habeas corpus will not lie if the statutory alternative provides a remedy that is at least as favourable. In my respectful view, it does. Mr. Chhina’s case is therefore captured by the Peiroo exception to the availability of habeas corpus review. The superior court properly declined to exercise its habeas corpus jurisdiction in favour of the complete, comprehensive and expert scheme to which Mr. Chhina was entitled under the Act.\n\nI would allow the appeal. Appeal dismissed, Abella J. dissenting.", "current_to": "2019-05-10", "last_amended": "", - "history": "Also reported: [2019] 2 SCR 467", + "history": "[2019] 2 SCR 467", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/17759/index.do" }, { @@ -26944,5 +26944,12389 @@ "last_amended": "", "history": "", "source_url": "https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1023/index.do" + }, + { + "id": "fca-143136-1", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 1–4", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister of Citizenship and Immigration (the appellant or the Minister) appeals from the decision of Justice Michael L. Phelan of the Federal Court allowing the three respondents’ application for judicial review: 2014 FC 799. In their application, the respondents were contesting the validity of the decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB), which dismissed their appeal from the Refugee Protection Division (RPD).\n\nPursuant to subsection 74(d) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA or the Act), the judge certified the following question: What is the scope of the Refugee Appeal Division’s review when considering an appeal of a decision of the Refugee Protection Division?\n\nThe respondents, who are citizens of Kosovo and Muslim, claim that their lives were threatened by an Islamic extremist group, the Wahhabis, and that the local police were unresponsive to their requests for help. The RPD rejected their claim on the basis that, among other things, they had not satisfied their burden of providing clear and convincing evidence to rebut the presumption that state protection would be forthcoming to them in Kosovo. The Canadian Association of Refugee Lawyers and the Canadian Council for Refugees were granted intervener status to support the respondents’ position.\n\nFor the reasons that follow, I would dismiss the appeal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-2", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 5–6", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Bujar Huruglica is married to Ms. Hanife Huruglica. Sadije Ramadani is Ms. Huruglica’s mother. As mentioned, the respondents are all citizens of Kosovo and Muslim. Following Mr. Huruglica’s and Ms. Ramadani’s employment by U.S. government contractors, they and their families were allegedly threatened in Kosovo by Islamic extremists. They testified that the Kosovar police were not responsive to their concerns and that their attempts to complain about the threats they received were not taken seriously. The respondents fled Kosovo in January 2013. They traveled through the U.S., where they stayed on a visitor’s visa, and subsequently entered Canada, where they made their refugee claims in March 2013.\n\nAlthough the respondents testified in a straightforward manner, and the RPD did not note any significant inconsistencies or omissions in their testimony, the RPD rejected their claims on the basis that the respondents’ failure to make asylum claims while in the U.S. diminished the credibility that they had subjective fear. The country conditions documentary evidence before the RPD was found not to support the respondents’ allegation that they could not get adequate state protection in Kosovo. The RPD also noted that this documentation did not support the presence and power of Islamic extremists in Kosovo. As such, there was no persuasive evidence to establish that extremist Wahhabis – or any other extremists – had any significant influence over the police or other state institutions in Kosovo.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-3", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 7–9", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before the RAD, the respondents did not submit new evidence or seek an oral hearing. The respondents argued that the RPD’s credibility assessment was flawed, in that the RPD had failed to consider their explanation for not seeking protection in the U.S., and that it had ignored objective evidence of Islamic extremism in Kosovo. They further submitted that the RPD’s state protection analysis was deficient, as it ignored evidence of widespread corruption at all levels of government and of police inadequacy and misconduct.\n\nThe RAD indicated that there was no need to deal with the alleged error in the assessment of the respondents’ credibility, since in its view, the decision of the RPD in respect of state protection was reasonably open to the RPD and was sufficient to dismiss the respondents’ claims.\n\nTo reach its conclusion, the RAD determined the standard of review that applied to the appeal from the RPD’s decision. The respondents had made no submissions in that respect.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-4", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 10–12", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RAD used the framework developed in Newton v. Criminal Trial Lawyers’ Association, 2010 ABCA 399, 493 A.R. 89 [Newton] in its standard of review analysis. It found that the so-called Newton factors were better suited to the task than those set out in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir], given that the RAD is an administrative appeal body rather than a reviewing court. The Newton factors are the following: a) the respective roles of the tribunal of first instance and the appellate tribunal, as determined by interpreting the enabling legislation; b) the nature of the question in issue; c) the interpretation of the statute as a whole; d) the expertise and advantageous position of the tribunal of first instance, compared to that of the appellate tribunal; e) the need to limit the number, length and cost of appeals; f) preserving the economy and integrity of the proceedings in the tribunal of first instance; and g) other factors that are relevant in the particular context.\n\nFirst, after a brief summary of some of the provisions dealing with the RPD and the RAD, the RAD concluded that: These respective roles suggest deference is owed to findings of fact, or findings of mixed fact and law, that can be traced back to evidence given at the RPD hearing. Where the RAD has new evidence before it, either through documents or from an oral hearing, less deference may be owed, as the RPD will not have considered this evidence. (RAD Reasons at para. 13)\n\nSecond, the RAD noted that the issues before it were factual, and that these questions were generally reviewed on a deferential standard in both appellate courts and judicial review contexts: Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12 at para. 89, [2009] 1 S.C.R. 339.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-5", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 13–15", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Third, the RAD held that the purpose and provisions of the IRPA suggest that the RAD is empowered to bring finality to the refugee protection process, and that it may be entitled to show less deference to the RPD in order to do so. In particular, the RAD drew from paragraph 111(1)(b) and subsections 111(2), 171(c) and 162(2) of the IRPA.\n\nTurning to the expertise and advantageous position of the RPD versus that of the RAD, the RAD underlined that the RPD always has the advantage of seeing and questioning refugee claimants, while the RAD will unfrequently have this opportunity. This “suggests that the RAD show deference to the RPD on findings of fact and particularly in respect to credibility, other than in situations where the RAD holds an oral hearing and therefore has opportunity to consider evidence first hand”: RAD Reasons at para. 20.\n\nThe last factor considered by the RAD was the need to limit the number, length and cost of appeals and preserve the economy and integrity of RPD proceedings. This, in the RAD’s view, was the factor that outweighed the others and suggested a deferential approach to questions of fact, especially when added to the fact that the RPD has the advantage of hearing witnesses. In this respect, the RAD adopted the Alberta Court of Appeal’s conclusion in Newton “that it is ‘singularly inefficient’ for a first-level hearing to be repeated at the appellate tribunal”: RAD Reasons at para. 21. The RAD so held despite the fact that its interpretation of the legislation as a whole would lead to the conclusion that little or no deference was to be shown to the RPD findings: RAD Reasons at para. 22.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-6", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 16–18", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having so concluded, the RAD therefore determined that the appropriate standard of review in this appeal was that of reasonableness, as defined in Dunsmuir and Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses]. The RAD did not consider other alternatives, including the standard of palpable and overriding error set out in Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 [Housen].\n\nIn its decision on the merits of the appeal, the RAD closely examined the reasoning offered by the RPD, as well as the arguments presented by the respondents. The RAD noted that in addition to the objective evidence cited by the RPD, there was further objective evidence supporting the RPD’s conclusion on the adequacy of state protection. It noted that the objective evidence before the RPD was “mixed” , in that it set out deficiencies in the functioning of government institutions, but also reported on steps taken to improve the quality of law enforcement which had concrete results. This documentation also showed that the Kosovar population trusted its national police service and was largely satisfied with the police’s work.\n\nHaving noted that local failures to provide effective policing do not amount to a lack of state protection unless such failures are situated by documentary evidence within a broader pattern of state inability or refusal to extend protection, the RAD reviewed the actual efforts made by the respondents with their local police and concluded that it was not unreasonable for the RPD to expect the respondents to do more than make an initial approach like they had done.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-7", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 19–20", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his reasons for granting the application for judicial review, the judge held that the RAD’s conclusion as to its role on appeal was reviewable on the standard of correctness. He justified this choice based on the fact that this question of law is one of general interest to the legal system as a whole that had particular significance outside the refugee law context. He noted that “setting the standard of review is a legitimate aspect of the superior court’s supervisory role”, and that both the Alberta Court of Appeal and the Nova Scotia Court of Appeal applied the standard of correctness to review a similar issue: Newton; Halifax (Regional Municipality) v. United Gulf Developments Ltd., 2009 NSCA 78 [United Gulf]. The judge also mentioned that determining its standard of review fell outside the scope of the RAD’s expertise and experience, even if it involved the interpretation of the IRPA, the RAD’s home statute. For these reasons, the judge distinguished the case before him from that of Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, 2011 3 S.C.R. 654 [Alberta Teachers].\n\nThe judge then held that the RAD had erred in applying the standard of reasonableness to its review of the RPD decision. He noted that this standard was adopted to recognize the division of powers between the executive and the judiciary, a concept that is of “lesser importance and applicability” in this case, which involves an administrative appeal body: Federal Court Reasons at para. 43. In the judge’s view, the relationship between the RAD and the RPD “is more akin to that between a trial court and an appellate court but further influenced by the much greater remedial powers given to the appellate tribunal”: Federal Court Reasons at para. 44.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-8", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 21–22", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge held that it may be appropriate to give deference to the RPD’s findings of fact when they turn on a witness’ credibility, but that this was not the case in the application before him. In respect of country conditions documentary evidence, the judge found that the RAD had equal or greater expertise than the RPD.\n\nHaving reviewed the relevant legislation and its purpose, and having compared the role of the RAD to that of the Immigration Appeal Division (IAD), the judge concluded as follows: [54] Having concluded that the RAD erred in reviewing the RPD’s decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD’s decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is a “palpable and overriding error”.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-9", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 23–24", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The questions to be determined are: a) What is the standard of review to be applied by this Court, particularly in respect of the certified question? b) What was the proper standard of review to be applied by the judge to the issue before him? c) Did the judge properly apply this standard, that is, did the RAD make a reviewable error in defining the “scope of [its] review when considering an appeal of a decision of the RPD”? I note that this issue is narrower than the question certified by the judge, as the RAD’s assessment in the present case did not involve a question of law, nor raise an issue relating to the credibility of oral evidence heard by the RPD.\n\nWith respect to the certified question, which is set out at paragraph 2, I will simply answer the question that is determinative of this appeal, for this is the only question that should have been properly certified under section 74(d) of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-10", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The most relevant provisions of the IRPA are reproduced here, while other provisions referred to in these reasons are included in Appendix A: Objectives and Application Objet de la loi Objectives — refugees Objet relatif aux réfugiés 3. (2) The objectives of this Act with respect to refugees are 3. (2) S’agissant des réfugiés, la présente loi a pour objet : (a) to recognize that the refugee program is in the first instance about saving lives and offering protection to the displaced and persecuted; a) de reconnaître que le programme pour les réfugiés vise avant tout à sauver des vies et à protéger les personnes de la persécution; (b) to fulfil Canada’s international legal obligations with respect to refugees and affirm Canada’s commitment to international efforts to provide assistance to those in need of resettlement; b) de remplir les obligations en droit international du Canada relatives aux réfugiés et aux personnes déplacées et d’affirmer la volonté du Canada de participer aux efforts de la communauté internationale pour venir en aide aux personnes qui doivent se réinstaller; (c) to grant, as a fundamental expression of Canada’s humanitarian ideals, fair consideration to those who come to Canada claiming persecution; c) de faire bénéficier ceux qui fuient la persécution d’une procédure équitable reflétant les idéaux humanitaires du Canada; (d) to offer safe haven to persons with a well-founded fear of persecution based on race, religion, nationality, political opinion or membership in a particular social group, as well as those at risk of torture or cruel and unusual treatment or punishment; d) d’offrir l’asile à ceux qui craignent avec raison d’être persécutés du fait de leur race, leur religion, leur nationalité, leurs opinions politiques, leur appartenance à un", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-11", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "groupe social en particulier, ainsi qu’à ceux qui risquent la torture ou des traitements ou peines cruels et inusités; (e) to establish fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system, while upholding Canada’s respect for the human rights and fundamental freedoms of all human beings; e) de mettre en place une procédure équitable et efficace qui soit respectueuse, d’une part, de l’intégrité du processus canadien d’asile et, d’autre part, des droits et des libertés fondamentales reconnus à tout être humain; (f) to support the self-sufficiency and the social and economic well-being of refugees by facilitating reunification with their family members in Canada; f) d’encourager l’autonomie et le bien-être socioéconomique des réfugiés en facilitant la réunification de leurs familles au Canada; (g) to protect the health and safety of Canadians and to maintain the security of Canadian society; and g) de protéger la santé des Canadiens et de garantir leur 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/143136/index.do" + }, + { + "id": "fca-143136-12", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Appeal to Refugee Appeal Division Appel devant la Section d’appel des réfugiés Appeal Appel 110 (1) Subject to subsections (1.1) and (2), a person or the Minister may appeal, in accordance with the rules of the Board, on a question of law, of fact or of mixed law and fact, to the Refugee Appeal Division against a decision of the Refugee Protection Division to allow or reject the person’s claim for refugee protection. 110 (1) Sous réserve des paragraphes (1.1) et (2), la personne en cause et le ministre peuvent, conformément aux règles de la Commission, porter en appel — relativement à une question de droit, de fait ou mixte — auprès de la Section d’appel des réfugiés la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile. Restriction on appeals Restriction (2) No appeal may be made in respect of any of the following: (2) Ne sont pas susceptibles d’appel : (a) a decision of the Refugee Protection Division allowing or rejecting the claim for refugee protection of a designated foreign national; a) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile d’un étranger désigné; (b) a determination that a refugee protection claim has been withdrawn or abandoned; b) le prononcé de désistement ou de retrait de la demande d’asile; (c) a decision of the Refugee Protection Division rejecting a claim for refugee protection that states that the claim has no credible basis or is manifestly unfounded; c) la décision de la Section de la protection des réfugiés rejetant la demande d’asile en faisant état de l’absence de minimum de fondement de la demande d’asile ou du fait que celle-ci est manifestement infondée; (d) subject to the regulations, a decision of the Refugee Protection Division in respect of", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-13", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "a claim for refugee protection if d) sous réserve des règlements, la décision de la Section de la protection des réfugiés ayant trait à la demande d’asile qui, à la fois : (i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and (i) est faite par un étranger arrivé, directement ou indirectement, d’un pays qui est — au moment de la demande — désigné par règlement pris en vertu du paragraphe 102(1) et partie à un accord visé à l’alinéa 102(2)d), (ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(e) to be referred to the Refugee Protection Division; (ii) n’est pas irrecevable au titre de l’alinéa 101(1)e) par application des règlements pris au titre de l’alinéa 102(1)c); (d.1) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1); d.1) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande d’asile du ressortissant d’un pays qui faisait l’objet de la désignation visée au paragraphe 109.1(1) 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/143136/index.do" + }, + { + "id": "fca-143136-14", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "allowing or rejecting an application by the Minister to vacate a decision to allow a claim for refugee protection. f) la décision de la Section de la protection des réfugiés accordant ou rejetant la demande du ministre visant l’annulation d’une décision ayant accueilli la demande d’asile. Procedure Fonctionnement (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d’audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s’agissant d’une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. Time limits Délais (3.1) Unless a hearing is held under subsection (6), the Refugee Appeal Division must make a decision within the time limits set out in the regulations. (3.1) Sauf si elle tient une audience au titre du paragraphe (6), la section rend sa décision dans les délais prévus par les règlements.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-15", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Evidence that may be presented Éléments de preuve admissibles (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Exception Exception (5) Subsection (4) does not apply in respect of evidence that is presented in response to evidence presented by the Minister. (5) Le paragraphe (4) ne s’applique pas aux éléments de preuve présentés par la personne en cause en réponse à ceux qui ont été présentés par le ministre. Hearing Audience (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (6) La section peut tenir une audience si elle estime qu’il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause; (b) that is central to the decision with respect to the refugee protection claim; and b) sont essentiels pour la prise de la décision relative à la demande d’asile; (c) that, if accepted, would justify allowing or rejecting the refugee protection claim.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-16", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "c) à supposer qu’ils soient admis, justifieraient que la demande d’asile soit accordée ou refusée, selon le cas. Decision Décision 111 (1) After considering the appeal, the Refugee Appeal Division shall make one of the following decisions: (a) confirm the determination of the Refugee Protection Division; (b) set aside the determination and substitute a determination that, in its opinion, should have been made; or (c) refer the matter to the Refugee Protection Division for re-determination, giving the directions to the Refugee Protection Division that it considers appropriate. 111 (1) La Section d’appel des réfugiés confirme la décision attaquée, casse la décision et y substitue la décision qui aurait dû être rendue ou renvoie, conformément à ses instructions, l’affaire à la Section de la protection des réfugiés. (1.1) [Repealed, 2012, c. 17, s. 37] (1.1) [Abrogé, 2012, ch. 17, art. 37] Referrals Renvoi (2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (2) Elle ne peut procéder au renvoi que si elle estime, à la fois : (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and a) que la décision attaquée de la Section de la protection des réfugiés est erronée en droit, en fait ou en droit et en fait; (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. b) qu’elle ne peut confirmer la décision attaquée ou casser la décision et y substituer la décision qui aurait dû être rendue sans tenir une nouvelle audience en vue du réexamen des éléments de preuve qui ont été présentés à la Section de la protection des réfugiés.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-17", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Provisions that Apply to All Divisions Attributions communes Sole and exclusive jurisdiction Compétence exclusive 162 (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction. 162 (1) Chacune des sections a compétence exclusive pour connaître des questions de droit et de fait — y compris en matière de compétence — dans le cadre des affaires dont elle est saisie. Procedure Fonctionnement (2) Each Division shall deal with all proceedings before it as informally and quickly as the circumstances and the considerations of fairness and natural justice permit. (2) Chacune des sections fonctionne, dans la mesure où les circonstances et les considérations d’équité et de justice naturelle le permettent, sans formalisme et avec célérité. Refugee Appeal Division Section d’appel des réfugiés Proceedings Procédure 171 In the case of a proceeding of the Refugee Appeal Division, 171 S’agissant de la Section d’appel des réfugiés : (a) the Division must give notice of any hearing to the Minister and to the person who is the subject of the appeal; a) la section avise la personne en cause et le ministre de la tenue de toute audience; (a.1) subject to subsection 110(4), if a hearing is held, the Division must give the person who is the subject of the appeal and the Minister the opportunity to present evidence, question witnesses and make submissions; a.1) sous réserve du paragraphe 110(4), elle donne à la personne en cause et au ministre la possibilité, dans le cadre de toute audience, de produire des éléments de preuve, d’interroger des témoins et de présenter des observations; (a.2) the Division is not bound by any legal or", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-18", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 25", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "technical rules of evidence; a.2) elle n’est pas liée par les règles légales ou techniques de présentation de la preuve; (a.3) the Division may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances; a.3) elle peut recevoir les éléments de preuve qu’elle juge crédibles ou dignes de foi en l’occurrence et fonder sur eux sa décision; (a.4) the Minister may, at any time before the Division makes a decision, after giving notice to the Division and to the person who is the subject of the appeal, intervene in the appeal; a.4) le ministre peut, en tout temps avant que la section ne rende sa décision, sur avis donné à celle-ci et à la personne en cause, intervenir dans l’appel; (a.5) the Minister may, at any time before the Division makes a decision, submit documentary evidence and make written submissions in support of the Minister’s appeal or intervention in the appeal; a.5) il peut, en tout temps avant que la section ne rende sa décision, produire des éléments de preuve documentaire et présenter des observations écrites à l’appui de son appel ou de son intervention dans l’appel; (b) the Division may take notice of any facts that may be judicially noticed and of any other generally recognized facts and any information or opinion that is within its specialized knowledge; and b) la section peut admettre d’office les faits admissibles en justice et les faits généralement reconnus et les renseignements ou opinions qui sont du ressort de sa spécialisation; (c) a decision of a panel of three members of the Refugee Appeal Division has, for the Refugee Protection Division and for a panel of one member of the Refugee Appeal Division, the same precedential value as a decision of an appeal court has for a", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-19", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 25–27", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "trial court. c) la décision du tribunal constitué de trois commissaires a la même valeur de précédent pour le tribunal constitué d’un commissaire unique et la Section de la protection des réfugiés que celle qu’une cour d’appel a pour une cour de première instance. [Emphasis added] [Je souligne]\n\nWhen reviewing a decision of the Federal Court on a judicial review application, this Court must determine if the judge chose the appropriate standard(s) of review for the issue(s) before him and if he applied it (them) correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, 2013 2 S.C.R. 559 [Agraira]. The latter involves “stepping into the shoes” of the judge. This Court’s focus will thus be on the decision of the RAD.\n\nThat said, the interveners particularly insisted that this Court should give the correct answer to questions that have been certified pursuant to subsection 74(d) of the IRPA. In their written and oral submissions, they relied on this Court’s decision in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paras. 30-37, [2015] 1 F.C.R. 335. However, since then, the Supreme Court has reversed this decision: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, 391 D.L.R. (4th) 644 [Kanthasamy]. The Supreme Court confirmed that despite the fact that a certified question may well be of general importance to the refugee law system, it is not a type of question that falls within the exceptions to the application of the standard of reasonableness: Kanthasamy at para. 44.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-20", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 28–29", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Kanthasamy will obviously have a tremendous impact, given that for many years, the Federal Court resorted to the certification process under subsection 74(d) to settle divergent interpretations or disagreements on legal issues of general importance. This Court’s providing the correct answer to certified questions appears to have been welcomed, particularly by the IAD and the RPD, who saw it as helpful in carrying out their functions.\n\nThe legislator is obviously empowered to set the standard of review that it wants to see applied to questions certified pursuant to subsection 74(d) of the IRPA. However, this must be done very clearly. Should the legislator wish to continue the system that was in place before Kanthasamy, it would be required to amend the IRPA and clarify its intention that certified questions be reviewed on a correctness standard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-21", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 30", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant strongly argues that the judge chose the wrong standard of review. The judge’s conclusion in that respect, as well as the precedents on which he relied (Newton and United Gulf), did not take into consideration all of the relevant Supreme Court of Canada decisions – especially those issued since 2011. Neither the judge nor the other two provincial courts of appeal turned their mind to the presumption that reasonableness applies to all questions of law arising from the interpretation of an administrative body’s home statute: see, for example, McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895 [McLean]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; and Canadian National Railway v. Canada (Attorney General), 2014 SCC 40, [2014] 2 S.C.R. 135 [CN v. Canada]. The Minister submits that the judge misconstrued the limited exceptions where the standard of correctness may be applied. I agree with these submissions.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-22", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 31–32", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "With all due respect to the judge and his colleagues in the Federal Court who have agreed with his selection of standard of review, I simply cannot conclude that a question of law involving the interpretation of an administrative body’s home statute so as to determine its appellate role has any precedential value outside of the specific administrative regime in question: see, among others, Alvarez v. Canada (Citizenship and Immigration), 2014 FC 702, [2014] F.C.J. No. 740; Yetna v. Canada (Citizenship and Immigration), 2014 FC 858, [2014] F.C.J. No. 906; Spasoja v. Canada (Citizenship and Immigration), 2014 FC 913, [2014] F.C.J. No. 920 [Spasoja]; Bahta v. Canada (Citizenship and Immigration), 2014 FC 1245, [2014] F.C.J. No. 1278; Sow v. Canada (Citizenship and Immigration), 2015 FC 295, 252 A.C.W.S. (3d) 316; Bellingy v. Canada (Citizenship and Immigration), 2015 FC 1252, 260 A.C.W.S. (3d) 566. In fact, this logically relates to the argument put forth by the respondents and the interveners that it is not useful to look at decisions regarding the role of administrative appeal bodies other than those created under the IRPA: see also the Federal Court Reasons at para. 53.\n\nJust as legal principles applicable to cost awards and to time limitations have been found to fall within the expertise of the administrative bodies involved in Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at para. 25, [2011] 3 S.C.R. 471 and McLean at para. 21, defining the scope of its appellate function (or its standard of review) must be within the RAD’s expertise.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-23", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 33–36", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I cannot agree with the respondents’ position that the issue before the judge was a true jurisdictional question. The respondents framed the issue as involving the overlapping ability of both the RPD and the RAD to exercise their sole and exclusive jurisdictions in making findings of fact, law and mixed fact and law on the same set of evidence. However, the Supreme Court has warned against an expansive interpretation of what it deems to be “true questions of jurisdiction”, as well as questions of overlapping or competing jurisdiction between two administrative bodies. In my view, there is no question here that falls under the scope of such exceptions. I agree with the position taken by other judges of the Federal Court, such as Justice Luc Martineau in Djossou v. Canada (Citizenship and Immigration), 2014 FC 1080, [2014] F.C.J. No. 1130 [Djossou] and Justice Jocelyne Gagné in Akuffo v. Canada (Citizenship and Immigration), 2014 FC 1063, [2014] F.C.J. No. 1116, that this is not a question of true vires.\n\nLastly, the Supreme Court made it clear in Kanthasamy that a question of general importance to the refugee law system does not fall under any of the other exceptions to the standard of reasonableness set out in Dunsmuir.\n\nI thus conclude that the judge erred in his selection of the standard of review applicable to the case before him, and that the proper standard ought to be that of reasonableness.\n\nBefore embarking on a statutory interpretation analysis, it is important to delineate what is in dispute before us from what is not.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-24", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 37–38", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is not disputed that the role of the RAD is not to review RPD decisions in the manner of a judicial review. All the parties agree that the process before the RAD is a “hybrid appeal”. The parties have also agreed that in respect of questions of law, the RAD should intervene if the RPD erred. That is, it must apply the correctness standard. In fact, and as explained below, one of the roles of the RAD is to develop a coherent national jurisprudence.\n\nWhat the parties disagree on is what a “hybrid appeal” means here, and what the RAD’s role is in respect of questions of fact and mixed fact and law.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-25", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 39–40", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "According to the Minister, the judge was wrong to the extent that his reasons can be interpreted as describing an appeal to the RAD as a de novo appeal. Indeed, the Minister submits that when the RAD does not hold a hearing and decides the issues raised by a claimant or the Minister on the basis of the record before the RPD (subsection 110(3) of the IRPA), the RAD is truly acting as an appellate court. Therefore, it should not carry out an independent assessment of the claim. Rather, the Minister says that the RAD should restrict its intervention to cases where the RPD made an unreasonable finding or, in the alternative, a palpable and overriding error: Appellant’s Memorandum of fact and law (MFL) at paras. 78-81. The Minister argues that the reasoning of the Court in Spasoja and its conclusion as to the role of RAD should be followed, because it preserves the integrity of the RPD process: Appellant’s MFL at para. 30. The Minister does not dispute that less deference, if any, would be owed in the relatively rare cases where the RAD holds a hearing pursuant to subsection 110(6) of the IRPA (see paragraph 110(6)(c) in particular). It is in that sense only that the appeal is a hybrid appeal in the Minister’s view.\n\nOn the other hand, the respondents and the interveners support the judge’s findings at paragraphs 54 and 55 of his reasons. In fact, in their view, a finding of error should not be a pre-condition for all appellate intervention by the RAD: Respondents’ MFL at para. 51.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-26", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 41–43", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "A few comments as to how I approached my task and what I consider necessary to include in my reasons are also warranted. In Canada (Public Safety and Emergency Preparedness) v. Tran, 2015 FCA 237 at para. 45, 392 D.L.R. (4th) 351, I indicated that it is sometimes difficult to apply the standard of reasonableness to pure questions of statutory interpretation, and that further guidance from the Supreme Court would be welcomed as to the type of analysis that courts should perform in such cases.\n\nThe parties referred to the conflicting approaches and conclusions reached by Federal Court judges on the issue before us. Thus, to ensure that I understood the various approaches to interpreting the relevant provisions that were adopted below, I reviewed all such Federal Court decisions, as well as a good sample of RAD decisions dealing with the issue (especially following the judge’s decision in the present case).\n\nHowever, I gather from the Supreme Court decision in Kanthasamy that there is no real need for me to engage in a comparative analysis to explain whether or not an alternative statutory interpretation is reasonable. Section 25 of the IRPA was construed for many years by many administrative and judicial decision-makers differently from how it was ultimately construed by our highest Court in Kanthasamy. Despite this, the Supreme Court felt no need to refer to these alternative constructions before concluding that section 25 of the IRPA bore only one reasonable interpretation, and that the decision under review was therefore unreasonable.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-27", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 44–45", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "This approach appears to be particularly well suited to the question before us in the present appeal. I agree with the position advanced by Dr. Paul Daly that the very nature of the question (that is, what role did the legislator intend the RAD to play) implies that it cannot have many answers: Paul Daly, “Les appels administratifs au Canada” (2015) 93 Can. Bar Rev. 71 at 105 [Les appels administratifs au Canada]. Accordingly, the range of legally acceptable outcomes will necessarily be narrow. In fact, as will be explained, it is my view that the legislative intent is not ambiguous. The controversy in RAD and Federal Court decisions can be more accurately described as a disagreement over whether to import either the standard from a judicial review of an administrative action (Dunsmuir) or an appellate court’s review of a lower court decision (Housen) into the RAD’s review of an RPD decision.\n\nI also note that in this particular case, the RAD did not have the benefit of any submissions in respect of its appellate role, nor of a record which included the legislative evolution and history of the relevant IRPA provisions. Further, it appears that the RAD was one of the first, if not the first, administrative appeal bodies outside of Alberta to rely on the Newton factors. This was mentioned by the British Columbia Supreme Court in BC Society for the Prevention of Cruelty to Animals v. British Columbia (Farm Industry Review Board), 2013 BCSC 2331 at para. 31, [2014] B.C.W.L.D. 966 [BC Society], where the B.C. Supreme Court declined to follow Newton.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-28", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 46–48", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I do not find the decision in Newton particularly useful. I believe that the determination of the role of a specialized administrative appeal body is purely and essentially a question of statutory interpretation, because the legislator can design any type of multilevel administrative framework to fit any particular context. An exercise of statutory interpretation requires an analysis of the words of the IRPA read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the IRPA and its object (Elmer A. Driedger, Construction of Statutes, 2d ed. (Toronto: Butterworths, 1983)). The textual, contextual and purposive approach mandated by modern statutory interpretation principles provides us with all the necessary tools to determine the legislative intent in respect of the relevant provisions of the IRPA and the role of the RAD.\n\nThe principles which guided and shaped the role of courts on judicial review of decisions made by administrative decision-makers (as set out in Dunsmuir at paras. 27-33) have no application here. Indeed, the role and organization of various levels of administrative decision-makers do not put into play the tension between the legislative intent to confer jurisdiction on administrative decision-makers and the constitutional imperative of preserving the rule of law.\n\nWith all due respect to the contrary view, it would also be inappropriate to import the considerations set out in Housen, since the adoption of the high level of deference afforded by appellate courts of law to lower courts of law on questions of fact and mixed fact and law was mainly guided by judicial policy: Housen at paras.16-17.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-29", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 49–52", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "When the legislator designs a multilevel administrative framework, it is for the legislator to account for considerations such as how to best use the resources of the executive and whether it is necessary to limit the number, length and cost of administrative appeals. As will be discussed, the legislative evolution and history of the IRPA shed light on the policy reasons that guided the creation of the RAD and the role it was intended to fulfil. These policy considerations are unique to the RPD and the RAD. Thus, one should not simply assume that what was deemed to be the best policy for appellate courts also applies to specific administrative appeal bodies.\n\nTo be clear, I am not saying that the standard of reasonableness will never apply in appeals to administrative appeal bodies. In fact, there are examples where the legislator clearly expresses an intention that such a standard be applied: see, for example, subsection 18(2) and section 33 of the Commissioner’s Standing Orders (Grievances and Appeals) Regulation, SOR/2014-289, adopted pursuant to the Royal Canadian Mounted Police Act, R.S.C., 1985, c. R-10; subsection 147(5) of the Corrections and Conditional Release Act, S.C. 1992, c. 20 (see Appendix A). This last provision was reviewed and construed by this Court in Cartier v. Canada (Attorney General), 2002 FCA 384 at paras. 6-9, [2003] 2 F.C.R. 317.\n\nRather, what I am saying is that one cannot simply decide that this standard will apply on the basis of one’s own assessment of factors (e) and (f) listed in Newton (see paragraphs 10, 15 and 16 above). One must seek instead to give effect to the legislator’s intent.\n\nWith this in mind, I will now proceed with my statutory analysis, looking first at the relevant purpose and object of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-30", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 53–54", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The many objectives of the IRPA are expressly set out in subsection 3(2) of the IRPA (see paragraph 25 above). The Minister focuses particularly on paragraph 3(2)(e), which refers to the establishment of fair and efficient procedures that will maintain the integrity of the Canadian refugee protection system. This is obviously very relevant when one considers the functions of the RPD and the RAD. That said, one should always keep in mind that the very first objective of the IRPA (paragraph 3(2)(a)) is to recognize that the refugee program is about saving lives and offering protection to the displaced and persecuted. This may be what prompted Robert Thomas to write that decision-making in respect of refugee claims is “perhaps the most problematic adjudicatory function in the modern state”: Robert Thomas, Administrative Justice and Asylum Appeals: A Study of Tribunal Adjudication (Oxford: Hart Publishing, 2011) at 48, cited in Les appels administratifs au Canada at 95 fn 103.\n\nThe IRPA creates two distinct divisions of the IRB to deal with refugee claims. The RPD plays a primary role in the refugee claims determination process, for it must hold a hearing in respect of every refugee claim: subsection 170(b) of the IRPA. It must also determine in advance the issues that will need to be addressed at its hearing. At the hearing, the member of the RPD plays a crucial role, quite distinct from that of a judge. Most of the time, he or she questions the claimant before he or she is examined by his or her own counsel, or cross-examined by counsel for the Minister, if any.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-31", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 55–56", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD is the final decision-maker in respect of all claims listed in subsection 110(2) of the IRPA. The respondents further point out that the RPD was in fact the final decision-maker in about 80% of the refugee claims assessed in 2013: Respondents’ MFL at para. 53; The Refugee Appeal Division: Presentation to the Toronto Regional Consultative Committee by Ken Atkinson (February 5, 2014), Appellant’s Appeal Book, Volume 1, Tab 7 at 68.\n\nWhen dealing with an appeal, the RAD has essentially the same powers as the RPD: see sections 162 and 171 of the IRPA. For example, the RAD has the same ability as the RPD to take “judicial notice of any facts that may be judicially noticed and of any other generally recognized facts, and information or opinion that is within its specialized knowledge”: subsection 171(b) of the IRPA. Nevertheless, there are a few important distinctions between the RAD and the RPD. First, the RAD will rarely hold a hearing: subsection 110(6) of the IRPA. Although it may consider any new documentary evidence submitted by the Minister, it can only accept new evidence as defined in subsection 110(4) from a refugee claimant (See Minister of Citizenship and Immigration v. Parminder Singh, 2016 FCA 96. Moreover, 10% of its members, as well as its vice-president, must be lawyers or notaries: subsection 153(4) of the IRPA. When an appeal is heard by three members of the RAD, their decision has the same precedential value that an appellate court decision has for a trial court. Such a decision binds all RPD members, as well as any one-member panel of the RAD: subsection 171(c) of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-32", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 57–59", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "The IRPA also provides for a similar two-level process in respect of other immigration matters. In particular, appeals from a number of first-level decision-makers are made to another IRB division: the IAD. The wording of paragraph 67(1)(a) of the IRPA, which describes when the IAD can intervene, is similar to that of paragraph 111(2)(a) (see Appendix A). However, I do not find it useful to say more about the IAD, because the cases discussing the IAD raised by the Minister are outdated: they are either old cases that were released before the IRPA came into force; or they are cases which were released after the IRPA came into force but which rely on the old cases. Both interpret language on when the IAD can intervene that is not current, and provide no analysis of the words “wrong in law or fact or mixed law and fact” found at subsection 67(1)(a).\n\nSections 110 and 111, reproduced above, deal with appeals from the RPD to the RAD. Subject to my comments with respect to paragraph 111(2)(b), I generally agree with the RAD’s finding that neither section 110 nor 111, nor the legislation as a whole, point to the need to show deference to the RPD’s findings of fact. As acknowledged by the RAD in this case, these provisions evidence the legislator’s intent that the RAD bring finality to the refugee claims determination process.\n\nIn particular, paragraph 111(2)(a) indicates that the RAD does not need to defer for factual findings. Paragraph 111(2)(a) does not distinguish between errors of law, fact or mixed fact and law. It simply requires that the decision of the RPD be “wrong in law, in fact or in mixed law and fact” (in French: “erronée en droit, en fait ou en droit et en fait”).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-33", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 60–61", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the hearing, the Minister argued that the wording of paragraph 111(2)(a) was such that it applied only to paragraph 111(1)(c), and not to paragraphs 111(1)(a) or (b). Thus, paragraph 111(2)(a) provides little guidance as to the role of the RAD when it confirms a RPD decision under paragraph 111(1)(a) or sets it aside by substituting “the determination that, in its opinion, should have been made” under paragraph 111(1)(b). I cannot agree. The effect of this argument is that the RAD would be forced to reach the appropriate outcome for the case (under one of paragraphs 111(1)(a), (b) or (c)) before it could choose the proper standard of review to apply to that case: it would be forced to put the cart before the horse.\n\nAlbeit in a different context, a similar approach was rejected by this Court in Cartier at paragraph 9. In that case, this Court noted that despite the awkward way the provision at issue was drafted, the applicable standard of review remained the same regardless of whether the appellate body confirmed or reversed the decision under appeal, thereby resulting in the release of an offender. I cannot see how this could be otherwise in the present case. Indeed, on appeal, the RAD must necessarily consider the RPD decision and the record available before determining how it should dispose of the matter, including whether it is preferable to dispose of the appeal in accordance with paragraph 111(1)(c) and subsection 111(2). The extent or nature of its review of the decision and its assessment of the record cannot depend on the ultimate conclusion that it will reach in this regard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-34", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 62–64", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, subsection 111(2) is part of the context that must be examined as a whole to determine the legislative intent regarding the role of the RAD in all cases mentioned under subsection 111(1). This is especially so because paragraph 111(2)(b) expressly refers to paragraphs 111(1)(a) and (b).\n\nI also note that the Minister appears to suggest that the word “wrong” is synonymous or the equivalent to the word “unreasonable”: Appellant’s MFL at para. 80. Again, I cannot accept this argument. This is not the ordinary meaning of the word “wrong”, nor is it its customary meaning in a legal context.\n\nThe ordinary meaning of the word “wrong” is “not correct or true”, “incorrect”, “mistaken”: The Oxford English Dictionary, 3d ed., s.v. “wrong”. The French version “erronée” has the exact same ordinary meaning, that is, “fausse”, “incorrecte”, “inexacte”, “mal fondée”: Le nouveau petit Robert, 2006, s.v. “erroné”. This wording definitively points to the standard of correctness. In addition, the legislator’s intent to use the word “wrong” in its ordinary meaning is, in my view, supported by the legislative history, to which I will refer later.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-35", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 65–66", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the Minister’s position can only be based on the assumption that the legislator meant to apply one of the deferential standards of review applicable to findings of fact, be it in the context of a judicial review or of an appeal from a trial court. No such presumption applies here, as the legislator made it clear that the RPD is not entitled to err, be it in law, in fact or in mixed and fact and law. As mentioned earlier, it would make little sense to give the word “wrong” a different meaning depending on whether it relates to the words “in law”, “in fact” or “in law and in fact” used in paragraph 111(2)(a). This would be contrary to the most basic rule of statutory interpretation.\n\nFurthermore, it appears from a search of the federal legislation and regulations that the word “wrong”, as used in paragraphs 111(2)(a) and 67(1)(a) of the IRPA, has not been used in any other federal statute or regulation. By contrast, there are many examples of statutes and regulations that capture the standard of reasonableness through the use of words such as “reasonable” or “reasonably”. I gave an example of each at paragraph 50 above. Thus, the IRPA’s unique provisions were expressly crafted to give effect to the legislator’s particular intent in respect of this sui generis scheme.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-36", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 67–68", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the hearing, the Minister submitted that the most telling characteristic of the RAD’s appeal process is that in the vast majority of cases (including the matter before us), the RAD determines the appeal on the basis of the record of the RPD proceedings: subsection 110(3) of the IRPA. This, he submits, leads to the conclusion that the legislator intended that all findings of fact (and not only those involving the assessment of oral evidence) be reviewed on the standard of reasonableness or of palpable and overriding error. I need only use one example to illustrate why I disagree that this is not the only inference that can be drawn from subsection 110(3). The present appeal is based solely on the record available before the judge. Still, as mentioned earlier, once it has been ascertained that the judge chose the appropriate standard of review for the question before him, the Court “steps into the shoes” of the judge to assess if he correctly applied that standard. No deference is owed in that respect, although the Court will carefully consider the decision under appeal.\n\nAdmittedly, inasmuch as paragraph 111(2)(a) is relevant to the analysis, subsection 110(3) is also part of the context that must be considered. However, subsection 110(3) is simply not as determinative as the Minister’s argument above suggests.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-37", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 69–71", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I now turn to paragraph 111(2)(b). It provides that once an error has been identified (paragraph 111(2)(a)), the RAD may refer the matter back for redetermination with the directions that it considers appropriate only if it is “of the opinion” that it cannot make a decision confirming or setting aside the RPD decision without hearing the evidence presented before the RPD. This possibility acknowledges the fact that in some cases where oral testimony is critical or determinative in the opinion of the RAD, the RAD may not be in a position to confirm or substitute its own determination to that of the RPD.\n\nThis also recognizes that there may be cases where the RPD enjoys a meaningful advantage over the RAD in making findings of fact or mixed fact and law, because they require an assessment of the credibility or weight to be given to the oral evidence it hears. It further indicates that although the RAD should sometimes exercise a degree of restraint before substituting its own determination, the issue of whether the circumstances warrant such restraint ought to be addressed on a case-by-case basis. In each case, the RAD ought to determine whether the RPD truly benefited from an advantageous position, and if so, whether the RAD can nevertheless make a final decision in respect of the refugee claim.\n\nOne can imagine many possible scenarios. For example, when the RPD finds a witness straightforward and credible, there is no issue of credibility per se. This will also be the case when the RAD is able to reach a conclusion on the claim, relying on the RPD’s findings of fact regarding the relative weight of testimonies and their credibility or lack thereof.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-38", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 72–74", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Problems will occur when the credibility findings themselves are disputed on appeal, and the RAD has no way to reach a conclusion without endorsing or rejecting those findings. If the RAD can identify an error in situations where, for example, a claimant was not found credible because his story was not plausible based on common sense, the RPD may have no real advantage over the RAD.\n\nSimilarly, there may also be cases where a finding that a witness is not credible was based on discrepancies that could not justify such a conclusion or that simply did not exist. If the assessment of the oral evidence contains an error which the RAD can easily identify, but the weight to be given to this testimony is essential to determine whether the RPD decision should be confirmed or set aside, the RAD may conclude that it is a proper case to refer back to the RPD with specific directions in respect of the error identified in the credibility findings.\n\nThat said, it is not appropriate to say more about the various scenarios that may arise, for they are not before us. The RAD should be given the opportunity to develop its own jurisprudence in that respect; there is thus no need for me to pigeon-hole the RAD to the level of deference owed in each case.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-39", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 75–76", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before concluding my analysis of the wording and scheme of the IRPA, I will say a few words about another argument raised by the Minister that could in theory fit in this analysis, given that it may address the objective set out in paragraph 3(2)(a) of the IRPA. Without providing any evidence to support his argument, the Minister states that unless the RAD applies a standard involving a high level of deference to the RPD findings of fact, it would be impossible for the RAD to fulfill its mandate because it would be required to peruse an enormous amount of documentation.\n\nAs mentioned earlier, I reviewed a large sample of decisions of the RAD that applied the approach suggested by the judge in this case. The RAD members in question had chosen to do so even after other Federal Court decisions indicated that the standard of palpable and overriding error could be used to review the RPD’s findings of facts. I note in passing that I was impressed by the general quality of those decisions; this certainly bodes well for the future. That said, I saw no indication that the RAD has any difficulty fulfilling its mandate when conducting substantive reviews of appealed RPD decisions. Certainly, there is no mention of this in any of the decisions that followed the approach described by the judge in this matter. A few members of the RAD have decided to follow the approach suggested in Spasoja. I understand that this is mostly because they felt that it was easier to apply a standard that was already well defined, not because they did not have the time or the resources to conduct the substantive review of the documents on file that would be mandated if a less deferential standard were applied.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-40", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 77–79", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, and as indicated above at paragraphs 49 and 51, the number of appeals and the time and effort required on each appeal is for the legislator to consider. I find no indication in the wording of the IRPA, read in the context of the legislative scheme and its objectives, that supports the application of a standard of reasonableness or of palpable and overriding error to RPD findings of fact or mixed fact and law.\n\nAt this stage of my analysis, I find that the role of the RAD is to intervene when the RPD is wrong in law, in fact or in fact and law. This translates into an application of the correctness standard of review. If there is an error, the RAD can still confirm the decision of the RPD on another basis. It can also set it aside, substituting its own determination of the claim, unless it is satisfied that it cannot do either without hearing the evidence presented to the RPD: paragraph 111(2)(b) of the IRPA.\n\nI also conclude that an appeal before the RAD is not a true de novo proceeding. Recognizing that there may be different views and definitions, I need to clarify what I mean by “true de novo proceeding”. It is a proceeding where the second decision-maker starts anew: the record below is not before the appeal body and the original decision is ignored in all respects. When the appeal is a true de novo proceeding, standard of review is not an issue. This is clearly not what is contemplated where the RAD proceeds without a hearing.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-41", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 80–83", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I will now look at the IRPA’s legislative evolution and history. Despite the relatively low weight generally given to legislative history, I agree with the Federal Court in Spasoja that on the issue before us, it is particularly instructive and simply impossible to ignore. As mentioned, I believe that both the legislative evolution and its history confirm the conclusion that I have reached at this stage of my analysis.\n\nAlthough much of what I will say here has been discussed in various decisions of the Federal Court (see, for example, Djossou at paras. 74-85 and Spasoja at paras. 32-38), it is worthwhile to set it out again, as it provides useful indications as to how the legislator envisioned the role of the RAD and how the two-tier administrative decision-making process was understood to provide a fair and more efficient process.\n\nFrom 1985 until the enactment of the IRPA, the determination of refugee claims was governed by sections 67-69.1 of the Immigration and Refugee Act, R.S.C. 1985, c. I-2. Refugee claims were decided by a quorum of two members of the Convention Refugee Determination Division, unless claimants consented to have their case determined by a single member. There was no appeal, and the only recourse was judicial review.\n\nBill C-11 (now the IRPA), which received Royal Assent on November 1, 2001, provided for the creation of a Refugee Appeal Division (the RAD) within the Immigration and Refugee Board. In 2007, a private Member’s bill (Bill C-280) was introduced to implement the provisions relating to the RAD (sections 110 and 111 particularly), but it never received Royal Assent.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-42", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 84–86", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Another Bill C-11, entitled the Balanced Refugee Reform Act, was introduced in March 2010. It proposed to bring the unproclaimed RAD provisions of the IRPA into force within two years of its Royal Assent. It also proposed changes to the existing RAD provisions, such that the RAD would have the power to accept new evidence in certain circumstances and the ability to hold a hearing in specified situations (subsections 110(4) and (6)). It received Royal Assent on June 29, 2010.\n\nIn February 2012, Bill C-31, entitled Protecting Canada’s Immigration System Act, was introduced. It proposed further changes to the RAD provisions; in particular, it proposed limitations on access to the appeal provided for in the IRPA by several categories of refugee claimants, and barred appeals on cessation and vacation decisions (see subsection 110(2) of the IRPA). It received Royal Assent on June 28, 2012.\n\nOn December 15, 2012, the 2010 and 2012 amendments came into force and the RAD was formally launched. As mentioned, although the legislative history is not in any way determinative and should not to be given undue weight as to the legislative intent (CN v. Canada at para. 47), it remains useful to consider statements of the Minister responsible for the legislation, as well as those of others directly involved in its development.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-43", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 87", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "When Bill C-11 was tabled, Joan Atkinson, Assistant Deputy Minister, noted that the introduction of single-member RPD panels was to be offset by the introduction of the claimants’ right of appeal before the RAD: Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 27 (May 17, 2001) at 1140 in Joint Book of Authorities (JBA), Part II, Vol. 1, Tab 10. Similarly, the Honourable Elinor Caplan, who was the Minister responsible for the bill, underlined that: The whole purpose [of the RAD] is to ensure that the correct decision is made ... Our expectation is that … the ability of the RAD to fix mistakes will give greater assurance to the Federal Court in the decision making at the IRB. In that way, we will see fewer cases actually given review at the Federal Court. (Standing Senate Committee on Social Affairs, Science and Technology, 37th Parliament, 1st Session, Issue 29 (October 4, 2001) in JBA, Part II, Vol. 1, Tab 11; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-44", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 88", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Peter Showler, former Chairman of the IRB, stated the following as to why it would be appropriate to reduce the number of members dealing with refugee claims from two to one: In contrast to the present model, where claims are normally heard by two-member panels, the vast majority of protection decisions will be made by a single member. Single-member panels are a far more efficient means of determining claims. It is true that claimants will no longer enjoy the benefit of the doubt currently accorded them with two-member panels, and I think that should be noted. However, any perceived disadvantage is more than offset by the creation of the refugee appeal division, the RAD, where all refused claimants and the minister have a right of appeal on RPD decisions. Appeals to the RAD will be in writing only and will be reviewed by experienced RPD decision-makers with the power to affirm the RPD decision, to set it aside and substitute their own decision, or to refer the matter back to the RPD for a rehearing on particular issues in exceptional cases where it might be necessary to hear additional evidence. We estimate the workload of the RAD will be about 8,000 to 9,000 cases per year, and we intend to equip the division with a corresponding level of staff and resources. It is expected that the RAD will produce two different but complementary results. By reviewing individual RPD decisions on the merits, the RAD can efficiently remedy errors made by the RPD. That, if you will, is the safety net for the RPD. However, in addition the divisions will ensure consistency in refugee decision-making by developing coherent national jurisprudence in refugee law issues.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-45", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 88–89", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I said to this committee before, we don’t see that as a benefit simply in that it will improve the quality of our decision-making. If there is more coherent, consistent jurisprudence, we think RPD decision-makers can actually make their decisions more quickly as well. […] So there’s a significant difference between them. We think the total result will end up the same as before. But as I’ve already indicated, we think we will have a better-quality decision-because we’ll have had two goes, two kicks, at the can. There’s not only been the original decision, but also a clear, authoritative, experienced review of that decision. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 5 (March 20, 2001) at 0915-20, 0925 in JBA, Part II, Vol. 1, Tab 6; emphasis added)\n\nMinister Elinor Caplan further stated that: Bill C-11 will create a new Refugee Appeal Division at the IRB to hear appeals on merit for decisions on refugee claims, rendering the system both faster and fairer by providing a mechanism to correct error in the first instance. […] Also I want to clarify that the RAD, the Refugee Appeal Division is not a second hearing. It is a review on merit of the hearing that took place at the Refugee Protection Division. (Standing Committee on Citizenship and Immigration, 37th Parliament, 1st Session, meeting No. 22 (May 8, 2001) at 0845, 0935 in JBA, Part II, Vol. 1, Tab 8)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-46", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 90–91", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the second reading of the private Member’s bill presented in 2007, Member of Parliament Richard Nadeau referred to a number of systemic considerations justifying the establishment of the RAD, including the need for more efficiency. This particular need had been described as follows by the Canadian Council for Refugees: “[a] specialized appeal division for refugee matters can deal much more efficiently with unsuccessful claimants than the Federal Court… The refugee appeals division can do a better job of correcting errors of law and fact”: House of Commons Debates, 39th Parliament, 1st Session, No. 122 (March 2, 2007) in JBA, Part II, Vol. 1, Tab 15 at 7569.\n\nDuring the debate on the second reading of Bill C-11 on April 26, 2010, the Honourable Jason Kenney, then-Minister of Citizenship and Immigration, stated: The proposed new system would also include, and this is very important, a full appeal for most claimants. Unlike the appeal process proposed in the past and the one dormant in our current legislation, this refugee appeal division, or RAD, would allow for the introduction of new evidence and, in certain circumstances, provide for an oral hearing. (House of Commons Debates, 40th Parliament, 3rd Session, No. 033, Vol. 145 (April 26, 2010) at 1945 in JBA, Part II, Vol. 2, Tab 24; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-47", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 92", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Then, on May 4, 2010, Minister Kenney pointed out before the Standing Committee on Citizenship and Immigration: However, there is finally an appeal section, which is even better than what was provided by the legislation in 2002. This new appeal division would provide most claimants with a second chance, an opportunity to introduce new evidence about their claim and to do so in an oral hearing, if necessary. And, significantly, Mr. Chairman, the bill would make it possible to remove those who would abuse our system within a year of their final IRB decision. […] I want to underscore that the refugee appeal division foreseen in the Immigration and Refugee Protection Act 2003, and proposed, for instance, in Mr. St-Cyr’s private member's bill, does not actually include, as does the RAD in Bill C-11, the ability to present new evidence and in certain cases to have an oral hearing before the appeal division decision-maker. This is an improved RAD. It’s an additional level of administrative fairness, but it’s not going to happen if we don't achieve the other streamlining in the system that the package speaks to. (Standing Committee on Citizenship and Immigration, 40th Parliament, 3rd Session, meeting No. 12 (May 4, 2010) at pp. 1535, 1610 in JBA, Part II, Vol. 2, Tab 25; emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-48", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "para 93", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "Minister Kenney added before the Senate Committee on Social Affairs, Science and Technology: The result would be a streamlined system that would actually add greater procedural fairness, through the creation of what's known as the Refugee Appeal Division. This would allow failed claimants a full appeal of their claims. In terms of our system, Bill C-11 would provide for the following. First, the creation of a new interview with an Immigration and Refugee Board public servant, in place of a written form, early in the claims process. In our opinion, that would speed up the process and make it more efficient. Second, independent decision makers at the Refugee Protection Division of the IRB who are public servants rather than political appointees. That means that people who hold the hearings for asylum claimants will be, after those reforms, IRB officials rather than cabinet appointees. Third, a new fact-based refugee appeal division that even surpasses what refugee advocates have requested for a long time. […] The initial hearing at the Refugee Protection Division and the appeal at the Refugee Appeal Division both constitute an analysis of the risk faced by the claimant. Will they face a risk of torture or threat to their life if returned to their country of origin? . . . Our position is that once you have had two negative risk assessments — that is, once an IRB officer has looked at your case and said that you do not face risk if returned to your country and a refugee appeal decision maker has made the same decision — we do not think it is appropriate to have a third, redundant, risk assessment based on that legal criteria of risk, which is now embedded in sections 96 and 97 of the Immigration and Refugee Protection Act.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-49", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 93–95", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "(Standing Senate Committee on Social Affairs, Science and Technology, 40th Parliament, 3rd Session, Issue 11 (June 22, 2010) at 11:14, 11:19 in JBA, Part II, Vol. 2, Tab 34; emphasis added)\n\nThe same idea was reiterated by Minister Kenney during the second reading of Bill C-31, when it was presented in the House of Commons in 2012: I reiterate that the bill would also create the new refugee appeal division. The vast majority of claimants who are coming from countries that do normally produce refugees would for the first time, if rejected at the refugee protection division, have access to a full fact-based appeal at the refugee appeal division of the IRB. This is the first government to have created a full fact-based appeal. (House of Commons Debates, 41st Parliament, 1st Session, No. 090, Vol. 146 (March 6, 2012) at 1515 in JBA, Part II, Vol. 2, Tab 36)\n\nShortly thereafter, he added: What we are proposing in C-31 goes above and beyond our legal and humanitarian obligations under both the Charter of Rights and Freedoms and the UN convention on refugees. It proposes an asylum system that would be universally accessible and that would respect absolutely our obligation of non-refoulement of people deemed to be in need of our protection. It would provide access to a full and fair hearing at an independent quasi-judicial body, which again goes above and beyond our charter and UN convention obligations. It would create for the first time a full and fact-based appeal at the refugee appeal division, accessible to the vast majority of failed asylum claimants who lose at the first instance. (House of Commons Debates, 41st Parliament, 1st Session, No. 094, Vol. 146 (March 12, 2012) at 1545 in JBA, Part II, Vol. 2, Tab 37; Emphasis added)", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-50", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 96–99", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "From these excerpts, I understand that the legislator expected to create a more efficient process by having a single member of the RPD evaluate each refugee claim, and enabling this decision-maker to issue his or her decision more quickly, with the assurance that any error would be corrected on appeal by another specialized decision-maker with experience and strong analytical skills.\n\nRather than systematically holding a second hearing on appeal, which might delay the RAD’s final decisions on refugee claims, the claimants’ second “kick at the can” on appeal (see paragraph 89 above) was to be done on the basis of the record before the RPD, except in limited cases where new evidence would be admitted and the requirements of subsection 110(6) were fulfilled.\n\nThe RAD was essentially viewed as the safety net that would catch all mistakes made by the RPD, be it on the law or the facts. This confirms my prior conclusion that the legislator intended the RAD to review the RPD decisions on the standard of correctness.\n\nThis appears to be substantially in line with the submissions of the United Nations High Commissioner for Refugees (UNHCR) on Bill C-31, in which the UNHCR noted that on an appeal in respect of refugee claims, the decision-maker should have the jurisdiction to review questions of both fact and law, be able to accept and assess new evidence, and to recognize refugees independently: UNHCR Submission on Bill C-31 Protecting Canada’s Immigration System Act, May 2012, online: UNHCR Canada < http://www.unhcr.ca/newsroom/publications/> in JBA Part I, Vol. 4, Tab 93.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-51", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 100–102", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "It was certainly expected in 2001 that the workload of the RAD would be important (i.e., 8,000 to 9,000 cases annually) and the IRB’s intent was to equip the new division with a corresponding level of staff and resources. The then-chairman of the IRB appears to have had no issue with respect to the capacity (in terms of staff and resources) of the RAD to substantively review RPD decisions on the merits and remedy errors made by the RPD: see above at paragraph 88. There is no indication that this exercise was viewed as a useless duplication of the work of the RPD, for this is exactly what justified reducing the number of members on the RPD panel involved in reviewing each refugee claim. It would certainly be more efficient to have only one instead of two decision-makers routinely involved in preparing and holding a hearing.\n\nThe restrictions on the claimants’ right to appeal introduced in 2012 would necessarily, in and of themselves, reduce the caseload of the RAD, while the other provision introduced expanded the RAD’s ability to admit new evidence.\n\nThe efficiency contemplated here by the legislator (that is, a more quickly-reached decision by a single member, usually reviewed – where the right of appeal exists – by a member of the RAD, generally without the need to hold a second hearing to correct any mistakes), as well as the legislator’s intention to assign the resources necessary to achieve this aim, are quite distinct from the considerations driving the judicial policy described in Housen and incorporated in the factors of Newton.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143136-52", + "doc_type": "caselaw", + "act_code": "2016 FCA 93", + "act_short": "Huruglica", + "act_name": "Canada (Citizenship and Immigration) v. Huruglica", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93", + "marginal_note": "paras 103–106", + "heading": "The Refugee Appeal Division reviews the Refugee Protection Division for correctness and makes its own independent assessment", + "part": "Federal Court of Appeal", + "division": "", + "text": "I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable.\n\nThus, the RAD erred by applying the reasonableness standard to the RPD’s analysis of the objective evidence regarding state protection and to its conclusion in that respect. I would, therefore, dismiss the appeal with costs to the respondents.\n\nI wish to thank the interveners for their excellent submissions, which were quite useful.\n\nIn light of paragraphs 23 and 24 above, I would reformulate the certified question as follows: Was it reasonable for the RAD to limit its role to a review of the reasonableness of the RPD’s findings of fact (or mixed fact and law), which involved no issue of credibility? Answer: No. The RAD ought to have applied the correctness standard of review to determine whether the RPD erred. \"Johanne Gauthier\" J.A. “I agree Wyman W. Webb J.A.” “I agree D.G. Near J.A.”", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143136/index.do" + }, + { + "id": "fca-143152-1", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 1–3", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The matter before the Court is an appeal from a judgment of Justice Jocelyne Gagné of the Federal Court (the judge), which allowed the application for judicial review of Parminder Singh (the respondent) of a decision of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board of Canada regarding his claim for refugee protection. The respondent’s refugee protection claim had previously been dismissed by the Refugee Protection Division (RPD), not only because he had failed to satisfactorily establish his identity, but because he was not credible and had an internal flight alternative available to him in India.\n\nThe appeal raises for the first time the issue as to how to interpret subsection 110(4) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 [IRPA], which governs admissible evidence before the RAD. This provision was enacted as part of the Balanced Refugee Reform Act, S.C. 2010, c. 8 [BRRA], the objective of which was to amend and implement unproclaimed provisions in the IRPA providing for the creation of the RAD.\n\nAt the end of her reasons, the judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-2", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 4–6", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister of Citizenship and Immigration (the Minister) argued that the Federal Court erred in failing to apply the criteria laid out in Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385, [2007] F.C.J. No 1632 [Raza] for the purposes of subsection 110(4), and that the RAD was entitled to refuse to admit into evidence a grade 12 diploma (the Diploma) that had been seized by the Canada Border Services Agency (CBSA) and that had not been submitted before the RPD. For the reasons that follow, I am of the view that the Minister’s submissions must be accepted and that the appeal must therefore be allowed.\n\nThe respondent is a citizen of India. He alleges to have been friends with one Bhupinder Singh when he was pursuing his studies, but that he only saw him occasionally following his graduation in 2002. Nonetheless, this individual apparently showed up at the respondent’s home in November 2012 to spend the night, before leaving for an unknown destination.\n\nSeveral days later, the respondent claims that the police arrested him in order to question him about Bhupinder Singh. He was purportedly held and tortured for three days before being released without conditions, when representatives from his village intervened on his behalf. Following this incident, he was apparently hospitalized for stomach pains. In support of his claims, he submitted a medical certificate to the RPD indicating that he had received treatment for injuries and vomiting, which contained a list of prescribed medications.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-3", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 7–9", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "About two weeks after this first incident, the respondent contends that the police arrested him a second time and detained him for 24 hours in order to question him further about Bhupinder Singh, before he was released once again due to the intervention of representatives from his village.\n\nAfter this second incident, the respondent alleges that his mother hired a smuggler to get him out of India. The respondent arrived in Canada on January 29, 2013, and claimed refugee protection at the port of entry. He handed over to the CBSA the driver’s licence and voter’s card the smuggler had obtained for him, as well as two school certificates issued in 2000 and 2002. The documents were seized, and the CBSA concluded after an analysis that the driver’s licence and voter’s card were probably forgeries. The respondent was initially detained due to the difficulty in establishing his identity, and was later released on condition that he report weekly to the CBSA’s offices.\n\nThe hearing before the RPD was held on April 2, 2013, and the notice of that decision was issued on May 7, 2013. First, the RPD found that the respondent had failed to establish his identity. In this regard, it noted that the CBSA had determined that the driver’s licence and voter’s card were probably forgeries, and opined that his credibility had been undermined by the fact that he had not made any efforts to obtain genuine versions of these documents through his family in India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-4", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 10–11", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As for the school certificates, the RPD’s record contained only the one that had been issued in 2000. Questioned about the 2002 Diploma, the respondent stated that he believed that it was still in the possession of Citizenship and Immigration Canada and that he did not understand why a copy of it had not been forwarded to the RPD. This explanation was rejected by the RPD, and as a result there was no evidence to corroborate his claim of having studied with Bhupinder Singh until 2002.\n\nLastly, the respondent had produced a copy of a ration card as well as a birth certificate. The ration card had been issued in 2008 but had been corrected in 2011 to remove the respondent’s sister and replace the family photo, following his sister’s marriage in 2010. The RPD found that the one-year gap between the marriage and the correction to the family’s ration card affected the probative value of the document, since the photo attached to the ration card seemed to have been affixed permanently rather than in a manner that would permit it to be changed. Given that the four identity documents filed as evidence by the respondent raised concerns, the birth certificate alone was not sufficient to establish his identity.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-5", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 12–13", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the RPD continued its analysis to conclude that the respondent’s narrative was not credible. The RPD pointed out that the respondent had changed the chronology of important events when he amended his Basis of Claim form, having initially placed his father’s cardiac problems after the two arrests, and then between the two arrests. Given the significance of the events in question, the RPD did not accept the respondent’s explanation that he had made a mistake with the dates and had only realized his error when he received his father’s medical report. The RPD also noted that this medical report only indicated facial paralysis and bed rest for a five-day period, which does not correspond to the claim that his father was half paralysed and permanently bedridden. The RPD further concluded that the medical report relating to the respondent’s stomach issues did not corroborate his allegations of torture.\n\nEven if the respondent had been able to establish his identity and the credibility of his narrative, the RPD ultimately found that he still had an internal flight alternative. While acknowledging that Indian police have the ability to pursue individuals throughout the country, the RPD nonetheless noted that only a limited group of militant Sikhs were targeted in this manner, and that the respondent did not have the profile of someone who would be targeted, were he to move elsewhere in India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-6", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 14–15", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "On appeal at the RAD, the respondent submitted an application to file additional evidence, namely, a copy of the Diploma. In support of his application, he filed an affidavit attesting that he had received from his former counsel, on or about June 11, 2013, a copy of his file that included a copy of the Diploma, which had apparently been faxed to his former counsel by the CBSA on February 25, 2013. He pointed out that he had been unaware of this fact prior to June 11, 2013, that it was consequently impossible for him to have produced the document before the RPD, and that he was therefore justified in asserting during his hearing before the RPD that the Diploma had been seized.\n\nThe RAD refused to allow the Diploma to be admitted into evidence. It first opined that subsection 110(4) of the IRPA should be interpreted in light of the jurisprudence that has developed around paragraph 113(a) of the same statute, and in particular on the basis of Raza, given the similar wording used in both provisions. The RAD also pointed out that the fact that evidence corroborates allegations or contradicts the findings of the RPD does not make it new evidence. Ultimately, the RAD found that the Diploma had been available to the respondent at the time of the hearing on April 2, 2013, since a copy of it had been sent to his former counsel on February 25, 2013. Considering that the respondent had not alleged any incompetence or made a complaint against his former counsel, he and his counsel had access to the Diploma and it was reasonable to expect that the document would have been presented at the hearing before the RPD. Accordingly, the RAD concluded that the Diploma was inadmissible, and as a result, that there was no ground to hold a hearing.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-7", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 16", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the merits, the RAD was of the view that the three issues should be reviewed on a standard of reasonableness. With respect to the identity of the respondent, the RAD concluded that the RPD had erred by failing to make a finding on the probative value of the school certificates to establish the respondent’s identity, analyzing them solely from the perspective of his credibility as to whether he had gone to school with Bhupinder Singh. Therefore, the RPD could not dismiss the birth certificate on the basis that this document alone was insufficient to establish the respondent’s identity. The RAD therefore found that the respondent’s identity had been duly established based on his school certificate and birth certificate. Second, the RAD was of the view that the RPD had not made an error of fact or of law in its overall assessment of the respondent’s credibility, and that it could reasonably doubt his credibility in light of the varying information with regard to the chronology of events he claimed to have experienced, the fraudulent or altered documents he presented as evidence, and the medical documents that did not corroborate his allegations. Given these findings, the RAD was of the opinion that it was not necessary for it to respond to the internal flight alternative issue.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-8", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 17–18", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Two issues were raised in the application for judicial review before the Federal Court. First the Court had to determine whether the RAD erred in applying the criteria in Raza to assess the admissibility of new evidence, and then consider the application of those criteria to the facts of the case. In both cases, the judge applied the reasonableness standard of review. The first issue concerned the interpretation of the RAD’s home statute and was not subject to any of the exceptions to the presumption that this type of question is reviewable on the reasonableness standard, while the second was clearly a question of mixed fact and law.\n\nAfter comparing the wording of subsection 110(4) and paragraph 113(a) of the IRPA and acknowledging that the language was similar, the judge began by noting that the role of a Pre-Removal Risk Assessment (PRRA) officer differed from that of the the RAD. While PRRA officers are employees of the Minister and must show deference to decisions made by the RPD unless new evidence arises that would require a re-assessment of the risks set out in sections 96 and 97, the RAD is a quasi-judicial administrative tribunal that has been given the mandate of hearing appeals from decisions issued by the RPD and may set aside a decision in order to substitute the determination that, in its opinion, should have been made (IRPA, s. 111(1)). Given these distinctive roles, the judge was of the opinion that it was not appropriate to apply, mutatis mutandis, the criteria developed in the context of paragraph 113(a) to interpret subsection 110(4).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-9", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 19", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Relying on a statement made in the House of Commons by the Minister of Citizenship and Immigration during a debate on the establishment of the RAD to the effect that refugee claimants must be able to benefit from a “full fact-based appeal”, the judge continued this line of reasoning by adding that adopting a restrictive approach to the admissibility of new evidence would prevent the RAD from fulfilling its mission. Lastly, she noted that the implicit factors identified by the Federal Court of Appeal in Raza “find their source in the purpose of paragraph 113(a)”, according to Justice Sharlow herself. That being the case, the judge added, these factors are not transferable in the context of an appeal before the RAD.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-10", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 20", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having concluded that it was unreasonable for the RAD to have strictly applied the criteria established in Raza when it came time to interpret subsection 110(4) of the IRPA, the judge then inquired as to whether it was reasonable for the tribunal to have refused to admit the Diploma into evidence. She determined that this piece of evidence could be material to demonstrate that the RPD erred in making negative findings with respect to the respondent’s credibility, namely, that the CBSA had not confiscated the Diploma and that the respondent had not established that he had attended school with Bhupinder Singh until 2002. The judge also found it unreasonable for the RAD to have concluded that the respondent should have brought this evidence before the RPD, given that it was not in his possession and that he mistakenly believed that the CBSA still had it. As for the fact that the respondent did not file a complaint against his former counsel, the judge opined that it was unreasonable to make this a prerequisite for filing new evidence or to expect the respondent to know the procedure for filing complaints before the Barreau du Québec.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-11", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 21–22", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court judge certified the following two questions: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Citizenship and Immigration), 2007 FCA 385, for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, LC 2001, c 27, apply to its subsection 110(4)?\n\nIt is well-settled that the role of this Court when hearing an appeal of a judgment on an application for judicial review is to determine first, whether the Federal Court identified the appropriate standard of review and second, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47, [2013] 2 S.C.R. 559; Wilson v. Atomic Energy of Canada Ltd., 2015 FCA 17 at para. 42, [2015] 4 R.C.F. 467 [Wilson] ; Telfer v. Canada (Revenue Agency), 2009 FCA 23 at paras. 18-19, [2009] F.C.J No. 71. In other words, this Court should “step into the shoes” of the Federal Court and focus on the administrative decision that is the subject of the judicial review: Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3 at para. 247, [2012] 1 S.C.R. 23.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-12", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 23", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted earlier, the judge applied the reasonableness standard to the interpretation of subsection 110(4) of the IRPA. In so doing, she relied on the well-established presumption that one must normally defer to an administrative decision-maker when it is called upon to interpret a statute closely related to its function and with which it has particular familiarity: Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 54, [2008] 1 S.C.R. 190 [Dunsmuir]; Smith v. Alliance Pipeline Ltd., 2011 SCC 7 at paras. 26 and 28, [2011] 1 S.C.R. 160 [Smith]; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53 at paras. 16 and 18, [2011] 3 S.C.R. 471; Nor-Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59 at para. 36, [2011] 3 S.C.R. 616 [Nor-Man]; Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at para. 30, [2011] 3 S.C.R. 654; Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11 at para. 167, [2013] 1 S.C.R. 467. Although this presumption is rebuttable, the judge correctly concluded that the interpretation of subsection 110(4) of the IRPA did not fall under one of the exceptions recognized by the existing jurisprudence: see, in particular Dunsmuir, at paras. 55 to 61; Nor-Man, at para. 35; Smith, at para. 26. Indeed, it is not a question of law of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise, or a constitutional question, a question regarding the jurisdictional lines between competing tribunals, or even a true question of jurisdiction.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-13", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 24–25", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The intervener nonetheless asserted that the judge erred in selecting a reasonableness standard, on the ground that she had an obligation to put an end to the differences in interpretation resulting from the wording of subsection 110(4) within the RAD. Relying on this Court’s recent decision in Wilson, the intervener related the various different approaches adopted by RAD members in applying subsection 110(4) and requested that we put an end to this uncertainty and to the conflicting results that are likely to result from it.\n\nWith respect, I am not persuaded by this argument. It should be noted that Wilson is an “unusual” case, to use the expression employed by Justice Stratas, in that the question as to whether the Canada Labour Code, R.S.C. 1985, c. L-2 permits dismissals on a without cause basis has been one of “persistent” discord, to the extent that the answer to this question has largely depended on the identity of the adjudicator. Furthermore, adjudicators are not bound by the decisions of their colleagues and operate independently rather than within an institution such as an administrative tribunal, which decidedly does not favour the emergence of a consensus or a consistent interpretation.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-14", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 26", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this instance, we are not confronted with a persistent discord that has existed for many years. The RAD was established in December 2012, and only began issuing decisions in 2013. There is therefore no urgent need to intervene, especially since the principles that will emerge from the jurisprudence of this Court and the Federal Court will necessarily provide a framework within which the RAD will be able to interpret subsection 110(4) of the IRPA. Thus, there is no need to depart from the general principle that an administrative tribunal is owed deference when it interprets its enabling statute; the early, tentative steps of the RAD and its differences of opinion as to the interpretation of certain statutory provisions do not affect the rule of law and are merely the inevitable consequence of choosing to entrust a specialized tribunal with the task of adjudicating disputes arising from the implementation of a new scheme.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-15", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, there was reason to believe that this Court owed no deference with regard to the decision made by an administrative decision-maker in the context of the IRPA, where the certified question on the basis of which the Federal Court decision was being appealed raised an issue of statutory interpretation. After all, the Federal Court may only certify serious questions of general importance that transcend the interests of the parties: IRPA, s. 79. Is this not precisely the type of question that requires a definitive interpretation and on which the Court of Appeal should rightly intervene to put a stop to inconsistencies that may develop within an administrative body? At least, this is what was suggested in decisions such as Hilewitz v. Canada (Minister of Citizenship and Immigration); De Jong v. Canada (Minister of Citizenship and Immigration), 2005 SCC 57, [2005] 2 S.C.R. 706 and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, 160 D.L.R. (4th) 193. In that last matter, Justice Bastarache (writing for the majority) states at paragraph 43: First, s. 83(1) would be incoherent if the standard of review were anything other than correctness. The key to the legislative intention as to the standard of review is the use of the words “a serious question of general importance” (emphasis added). The general importance of the question, that is, its applicability to numerous future cases, warrants the review by a court of justice.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-16", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 27", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Would that review serve any purpose if the Court of Appeal were obliged to defer to incorrect decisions of the Board? Is it possible that the legislator would have provided for an exceptional appeal to the Court of Appeal on questions of “general importance”, but then required that despite the “general importance” of the question, the court accept decisions of the Board that are wrong in law, even clearly wrong in law, but not patently unreasonable? The only way in which s. 83(1) can be given its explicitly articulated scope is if the Court of Appeal – and inferentially the Federal Court, Trial Division – is permitted to substitute its own opinion for that of the Board in respect of questions of general importance. This view accords with the observations of Iacobucci J. in Southam, supra, at para. 36, that a determination which has “the potential to apply widely to many cases” should be a factor in determining whether deference should be shown. While previous Federal Court decisions, including, arguably, the dispute in Sivasamboo, involve significant determinations of facts, or at the highest, questions of mixed fact and law, with little or no precedential value, this case involves a determination which could disqualify numerous future refugee applicants as a matter of law. Indeed, the decision of the Board in this case would significantly narrow its own role as an evaluator of fact in numerous cases.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-17", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 28–30", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Yet the Supreme Court decided otherwise. In a recent decision, the highest court concluded that the presence of a certified question was not determinative and that the applicable standard of review for such questions is reasonableness: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44, [2015] S.C.J. No. 61. In order to reach such a conclusion, the Court essentially relied on the fact that it is the judgment itself that is ultimately the subject of an appeal, and not merely the certified question.\n\nFor all of these reasons, I therefore conclude that the judge correctly identified the standard of review to be applied to the application for judicial review that was before her. In other words, the RAD’s interpretation of subsection 110(4) of the IRPA was subject to review on the reasonableness standard, in accordance with the presumption that an administrative body’s interpretation of its home statute is owed deference by a reviewing court.\n\nI would hasten to add, as the judge did, that the present appeal does not turn on the role of the RAD and on the standard of review it should apply when ruling on decisions issued by the RPD, but solely on the factors the RAD must consider when assessing the admissibility of evidence that was not presented before the RPD. The standard to be applied by the RAD when reviewing a decision of the RPD on the merits is dealt with in another ruling of this Court in Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-18", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 31–32", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, the original version of the IRPA had anticipated the creation of the RAD, tasked with hearing appeals of certain RPD decisions. However, the relevant provisions were never implemented, and it was ultimately not until the enactment of the BRRA, on June 29, 2010, that the unproclaimed provisions (after a few minor amendments) creating the RAD would be implemented. Those provisions came into force on December 15, 2012 (Order Fixing December 15, 2012 as the Day on which Certain Sections of the Act Come into Force, S.I./2012-94, (2012) C. Gaz. II, 2980-2981; IRPA, s. 275).\n\nThe version ultimately adopted by Parliament differs in certain respects from the original 2001 document. More specifically, subsection 110(3) allows the Minister and the person who is the subject of the appeal to present not only written submissions, as was the case in the original version, but documentary evidence as well. It was precisely in the wake of this amendment that subsection 110(4) was introduced, which restricts evidence that may be presented by the person who is the subject of the appeal to “only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented.”", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-19", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 33", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The wording of this provision bears a striking resemblance to that in paragraph 113(a), which governs the admissibility of new evidence in PRRA applications. A comparison of both texts allows for a better visualization of this resemblance: Evidence that may be presented Éléments de preuve admissibles 110. (4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. 110. (4) Dans le cadre de l’appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’elle n’aurait pas normalement présentés, dans les circonstances, au moment du rejet. Consideration of application Examen de la demande 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet;", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-20", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 34–35", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is no doubt that the explicit conditions set out in subsection 110(4) have to be met. Accordingly, only the following evidence is admissible: • Evidence that arose after the rejection of the claim; • Evidence that was not reasonably available; or • Evidence that was reasonably available, but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection.\n\nThese conditions appear to me to be inescapable and would leave no room for discretion on the part of the RAD. In the first place, the very wording of subsection 110(4) specifies that the person who is the subject of the appeal “may present only” (« ne peut présenter ») evidence that falls into one of these three categories, thereby excluding any other evidence. Second, one should not lose sight of the fact that this provision departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted. Indeed, the judge seems to agree with this approach, insofar as she states that the respondent “was required to establish that he could not have reasonably been expected to provide the newly submitted documents at his RPD hearing” (para. 47). If she ultimately sides with him, it is because his request to file this new evidence fell squarely, in her view, within the scope of subsection 110(4), “and it met its explicit criteria” (para. 62).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-21", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 36–37", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent and intervener relied on Elezi v. Canada (Minister of Citizenship and Immigration), 2007 FC 240, [2008] 1 F.C.R. 365 [Elezi] and, to a lesser extent, on Sanchez v. Canada (Minister of Citizenship and Immigration), 2009 FC 101, [2009] F.C.J No. 101, to argue that the RAD may take into account the probative value and credibility of evidence in order to counteract the requirements of subsection 110(4). With respect, I am unable to agree with this interpretation.\n\nI would first note that Elezi was issued nine months before the Court of Appeal’s ruling in Raza, and is therefore no longer authoritative insofar as it departs from this later decision. In addition, in Elezi, the PRRA officer’s decision not to admit some of the evidence was deemed to be unreasonable either because the evidence arose after the RPD’s decision, or because the applicant could not reasonably have been expected to present that evidence to the RPD in the circumstances. As a result, the assertion that one cannot reject credible evidence on the sole ground that it is “technically inadmissible” must be considered purely as an obiter.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-22", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The true crux of the issue here consists in determining whether the implied conditions of admissibility identified in the context of paragraph 113(a) by Justice Sharlow in Raza are also applicable to subsection 110(4). Because it goes to the heart of the submissions filed by counsel for both parties and the intervener, it is important to reproduce the following relevant excerpt from that decision: [13] As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD; or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing; or (c) contradicting a finding of fact made by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-23", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 38", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Materiality: If the evidence is material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material). [14] The first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a), within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a). [15] I do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-24", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 39–40", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, the judge refused to transpose the implicit admissibility criteria identified by the Court of Appeal regarding paragraph 113(a) to the context of subsection 110(4). Relying on the fact that questions relating to credibility, relevance, newness and materiality arise implicitly from the purpose of paragraph 113(a), as Justice Sharlow herself declared, the judge was of the opinion that the different role and status of the RAD as compared to that of a PRRA officer called for a distinctive analysis. For the reasons that follow, I cannot subscribe to this view.\n\nIt must be assumed that Parliament’s decision to use near-identical wording did not happen by chance. Under a well-known rule of interpretation, it must be presumed that Parliament, when it uses the same wording as a provision that has already been interpreted by the courts, intends to rely on that interpretation: see Elmer A. Driedger, Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983 at p. 125.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-25", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 41", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that the French iteration of subsection 110(4) differs slightly from paragraph 113(a), insofar as it does not state “that the applicant could not reasonably have been expected…to have presented” (« qu’il n’était pas raisonnable … de s’attendre à ce qu’il les ait présentés »), but rather “that the person could not reasonably …have presented” (« qu’elle n’aurait pas normalement présentés »). I would agree with the judge that this distinction is not particularly telling, nor is it sufficient, in and of itself, to set aside past jurisprudence that has developed with regard to paragraph 113(a). In addition, no great inference may be drawn from the absence of the word “new” in the English version of subsection 110(4). Not only is the word “new” (« nouveau ») nowhere to be found in the French version of paragraph 113(a), but it is furthermore self-evident that evidence that arose after the rejection of the refugee protection claim will necessarily be new.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-26", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 42", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The fact that the RAD is a quasi-judicial administrative tribunal, as opposed to the PRRA officer, who is an employee of the Minister, acting within his or her employer’s discretion, must obviously be taken into consideration. The same applies to the fact that the RAD has an appellate function and has the authority to set aside the RPD’s decision and substitute that which should have been made, while the PRRA officer must show deference and does not sit in appeal of the RPD’s decision and his or her only mission is to assess any new pre-removal risk. These distinctions are not determinative of the admissibility of new evidence, however, and I note that the trial judge did not specify how the distinctive role and status of the RAD and the PRRA officer should affect the criteria for admitting evidence or how it would allow for the negation of the presumption to which I referred above.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-27", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 43", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In fact, the criteria used in Raza are consistent with the tests generally adopted by courts and administrative bodies, and are essentially designed to preserve the integrity of the judicial process: see Public School Boards’ Assn. of Alberta v. Alberta (Attorney General), 2000 SCC 2 at para 10, [2000] 1 S.C.R. 44. Although they were established by the Supreme Court in the context of a criminal proceeding (see Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775, 106 D.L.R. (3d) 212 [Palmer]), the criteria of newness, relevance, credibility and materiality were subsequently applied in civil matters (J.T.I MacDonald Corp. v. Canada (Attorney General), 2004 CanLII 30110 at para. 3, [2004] J.Q. no 9409 (C.A.Q.), in disciplinary law (Morin v. Regional Administration Unit #3 (P.E.I.), 2002 PESCAD 9 at para. 140, 213 D.L.R. (4th) 17 (P.E.I.C.A.), in aboriginal law (Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans), 2002 FCA 22 at para. 20, [2002] F.C.J No. 146) and in a number of other areas (see Donald J.M. Brown, Civil Appeals, Carswell, Toronto, 2015, pp. 10-16 to 10-18).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-28", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 44", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, in my view it would be difficult to argue that the criteria set out by Justice Sharlow in Raza do not flow just as implicitly from subsection 110(4) as from paragraph 113(a). It is difficult to see, in particular, how the RAD could admit documentary evidence that was not credible. Indeed, paragraph 171(a.3) expressly provides that the RAD “may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.” It is true that paragraph 110(6)(a) also introduces the notion of credibility for the purposes of determining whether a hearing should be held. In that regard, however, it is not the credibility of the evidence itself that must be weighed, but whether otherwise credible evidence “raises a serious issue” with respect to the general credibility of the person who is the subject of the appeal. In other words, the fact that new evidence is intrinsically credible will not be sufficient to warrant holding a hearing before the RAD: this evidence would still be required to justify a reassessment of the overall credibility of the applicant and his or her narrative.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-29", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 45–47", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The same would apply to relevance. This is a basic condition for the admissibility of any piece of evidence, and it would be difficult to imagine the introduction of new evidence being somehow exempt from this criterion. Indeed, Rules 3(3)(g)(iii) and 5(2)(d)(ii) of the Refugee Appeal Division Rules, S.O.R./2012-257 implicitly allude to this by providing that both the appellant’s memorandum and memorandum in reply must include full and detailed submissions regarding how any documentary evidence the appellant wishes to rely on not only meets the requirements of subsection 110(4), but also how that evidence relates to the appellant (« la façon dont ils sont liés à l’appelant »).\n\nThe newness criterion may appear somewhat redundant and does not really add to the explicit requirements of subsection 110(4).\n\nAs for the fourth implicit criterion identified by this Court in Raza, namely, the materiality of the evidence, there may be a need for some adaptations to be made. In the context of a PRRA, the requirement that new evidence be of such significance that it would have allowed the RPD to reach a different conclusion can be explained to the extent that the PRRA officer must show deference to a negative decision by the RPD and may only depart from that principle on the basis of different circumstances or a new risk. The RAD, on the other hand, has a much broader mandate and may intervene to correct any error of fact, of law, or of mixed fact and law. As a result, it may be that although the new evidence is not determinative in and of itself, it may have an impact on the RAD’s overall assessment of the RPD’s decision.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-30", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 48–49", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Under subsection 110(6) of the IRPA, a RAD hearing may be held, subject to three conditions associated with the existence of new documentary evidence. The principle whereby the RAD proceeds without holding a hearing, as set out in subsection 110(3), is subject to an exception only where the documentary evidence “(a) […] raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) […] is central to the decision with respect to the refugee protection claim; and (c) […] if accepted, would justify allowing or rejecting the refugee protection claim.” These three conditions are unquestionably related to the materiality of the new documentary evidence that the RAD could be required to consider. If such is the case, as one would have reason to believe, it would be redundant to require materiality of evidence for it to be admissible as new evidence, to then subject the conduct of a hearing to the same criterion.\n\nSubject to this necessary adaptation, it is my view that the implicit criteria identified in Raza are also applicable in the context of subsection 110(4). For the reasons set out above, I am not satisfied that the differing roles of the PRRA and the RAD, and the separate status of persons who perform these functions, are sufficient to set aside the presumption that Parliament intended to defer to the courts’ interpretation of a legislative text when it chose to repeat the same essential points in another provision. Not only are the requirements set out in Raza self-evident and widely applied by the courts in a range of legal contexts, but there are very good reasons why Parliament would favour a restrictive approach to the admissibility of new evidence on appeal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-31", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 50", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As the Supreme Court noted in Palmer, a well-established judicial principle exists whereby the evidence and issues must be introduced exhaustively and dealt with at trial in criminal matters or at first instance in civil matters. As a case progresses, the issues in the matter must normally be further narrowed; the effect of introducing new evidence would be rather to expand the scope of the debate. This is what the RAD aptly highlighted at paragraph 20 of its reasons: On this topic, it should be noted that the fact that evidence corroborates facts, contradicts RPD findings or clarifies evidence before the RPD does not make it “new evidence” within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD. In my opinion, this is exactly what subsection 110(4) of the Act seeks to prohibit. [Footnotes omitted]", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-32", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 51–52", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, it is significant to note that Parliament’s departure from the principle of a paper-based appeal, held in the original version of the IRPA adopted in 2002, was limited. At the risk of repeating myself, the basic rule is that the RAD “must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division […]” (s. 110(3)). The new evidence must meet the admissibility criteria set out in subsection 110(4), and a new hearing can be held only if the new evidence fulfils the conditions set out in subsection 110(6). Where the RAD finds that all of the evidence should be heard again in order to make an informed decision, it must refer the case back to the RPD (ss. 111(2)). This legislative framework reflects Parliament’s clear wish to narrowly define the introduction of any new evidence.\n\nThe judge acknowledged that an appeal filed with the RAD is “mostly intended as a ‘paper-based’ appeal” (para. 52). However, it is her opinion that a strict interpretation of subsection 110(4) would limit an applicant’s access to a “full fact-based appeal,” which would go against the wishes expressed by Jason Kenney, former Minister of Citizenship and Immigration, in a statement made in the House on March 6, 2012 (House of Commons Debates, 41st Parl., 1st Sess., No. 90 (March 6, 2012) at p. 5874).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-33", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 53", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that in tabling the bill, the Minister affirmed that the vast majority of applicants from non-designated countries would have, for the first time, a “fact-based appeal” before the RAD. This statement alone is insufficient to substantiate the theory that criteria explicitly set out at subsection 110(4) can be set aside. It is at best ambiguous, and could be simply construed as differentiating the appeal from the much narrower scope of a judicial review. In this regard, I support the argument of the appellant and his analysis of the circumstances in which the Minister made his statement.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-34", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 54", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge also based the decision on the reduced timeframes within which claimants must submit their documents to support the flexible interpretation of the admissibility criteria she considered in her decision. The amendments made to the IRPA and to the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [IRPR] do put a great deal of pressure on refugee protection claimants. The referral of a claim to the RPD is done within the three days following the filing of the claim (IRPA, subsection 100(1)), and the hearing must take place within 60 days of the referral (IRPR, paragraph 159.9(1)(b)), and even within 30 or 45 days for nationals from a designated country. Furthermore, according to paragraph 34(3) of the Refugee Protection Division Rules, S.O.R./2012-256 [RPD Rules], refugee protection claimants must file their supporting documentation before the RPD 10 days before the hearing. However, these considerations do not suffice to set aside the clear legislative intention to not authorize any new evidence on appeal other than in very specific and carefully defined circumstances. The role of the RAD is not to provide the opportunity to complete a deficient record submitted before the RPD, but to allow for errors of fact, errors in law or mixed errors of fact and law to be corrected.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-35", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 55", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Inversely, the desire to counter the abuses that could occur under the regime applicable before the BRRA and the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17 came into force should not be invoked to restrict new evidence that those finding themselves with valid reason before the RAD should seek to file. In his factum, the Minister stated that the BRRA showed some degree of a willingness to enhance the admissibility criteria for new evidence at the RAD. Undoubtedly, Parliament intended to ensure the integrity of the immigration system by more effectively countering individuals who try to abuse it. To do so, Parliament took a certain number of measures, such as the creation of the RAD, and set out clear rules of evidence and procedure to ensure its appropriate functioning. These rules must be respected, and it must be presumed that the explicit choices that were made match the objective pursued. It is not the responsibility of the courts to rewrite such provisions when they are intelligible and unequivocal.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-36", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, the intervener stated that the RAD should take its inspiration from the values enshrined in the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act, 1982 (UK), c. 11 [Charter] when it rules on the admissibility of new evidence. Based on paragraph 3(3)(d) of the IRPA, further to which the Act is to be construed and applied in a manner that ensures that decisions taken under this Act are consistent with the Charter, as well as the decisions rendered by the Supreme Court in Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 [Doré] and Loyola High School v. Quebec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613 [Loyola], counsel for the intervener claimed that the RAD had to go beyond the requirements set out in subsection 110(4) and was obligated to proceed with a proportionality analysis between the seriousness of the violation of the Charter right and the statutory objectives. The following is how counsel described the test they propose (in paragraph 34 of their factum): (a) If the evidence is capable of credibly proving relevant circumstances that arose after the RPD’s decision, then the evidence must be considered. (b) If the evidence is only capable of credibly proving relevant circumstances that arose prior to the RPD’s decision, then the RAD should consider if the appellant established either (i) that the evidence was not reasonably available or (ii) that she could not reasonably have been expected in the circumstances to have presented it, at the time of the RPD decision.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-37", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 56", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this assessment, the RAD should recall that « in order for there to be a ‘full fact-based appeal’ before the RAD, the criteria for the admissibility of evidence must be sufficiently flexible to ensure it can occur » [Singh v. Canada (MCI), 2014 FC 1022 at para. 55, per Gagné J.]. If the appellant is able to establish either condition, then the evidence must be admitted. (c) If the appellant is unable to satisfy either condition, then the RAD should consider whether the evidence raises a prima facie case of risk and, if admitted, could allow the RAD to come to a different conclusion on a central aspect of the claim than that of the RPD. If it does, then the RAD must conduct a proportionality exercise in which it balances the severity of the interference that exclusion would cause to the appellant’s Charter rights with the statutory objectives underlying s. 110(4).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-38", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 57", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect, I cannot agree with this argument. It is true that, in Doré, the Supreme Court stated that it was of the opinion that an administrative decision-maker must weigh the values set out in the Charter and the statutory objectives in the exercise of his or her discretionary power. In the context of a judicial review, the Court must determine whether the decision under review is the result of a proportionate balancing of the rights and values protected by the Charter, a process that bears some resemblance to the framework of analysis established in R. v. Oakes, [1986] 1 S.C.R. 103, 26 D.L.R. (4th) 200 when the very validity of a legislative text is challenged. This approach is well summarized in the following excerpt from Doré, at paragraph 57: On judicial review, the question becomes whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects proportionate balancing of the Charter protections at play. As LeBel J. noted in Multani, when a court is faced with reviewing an administrative decision that implicates Charter rights, “[t]he issue becomes one of proportionality” (para. 155) and calls for integrating the spirit of s. 1 into judicial review. Though this judicial review is conducted within the administrative framework, there is nonetheless conceptual harmony between a reasonableness review and the Oakes framework, since both contemplate giving a “margin of appreciation”, or deference, to administrative and legislative bodies in balancing Charter values against broader objectives.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-39", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 58–59", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Based on this approach, counsel for the intervener claim that the values protected by section 7 of the Charter must enter into the interpretation and application of subsection 110(4) of the IRPA and even lead to the admissibility of new evidence that does not meet the explicit requirements of this provision. However, this thesis encounters at least two difficulties.\n\nFirst of all, it has not been established in this case that the values protected by section 7 of the Charter are affected by the RAD’s decision not to admit as new evidence the Diploma that the respondent wanted to adduce. The intervenor argued that excluding credible evidence could result in an appeal being dismissed and consequently in the removal of the foreign national “as soon as possible”, because the conditional removal order comes into force 15 days after notification that the claim is rejected (IRPA, s. 49(2)c)). However, in my view this does not seem sufficient to conclude that the decision not to admit new evidence on appeal necessarily affects the right not to be deprived of life, liberty and security of the person except in accordance with the principles of fundamental justice.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-40", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 60", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is first noteworthy that the decision made by the RPD, and on appeal before the RAD, does not pertain to the respondent’s removal, but solely to whether he is genuinely a Convention refugee or a person in need of protection in accordance with sections 96 and 97 of the IRPA. I am prepared to recognize that the RAD’s decision to exclude evidence on the grounds that it does not meet the criteria in subsection 110(4) will have a significant impact if a foreign national tries to submit that same evidence to a PRRA Officer or to a Removal Officer. Nevertheless, the respondent in this case failed to establish his credibility; the RAD found that the RPD could reasonably conclude that the respondent’s credibility was seriously undermined, and that that conclusion would be valid even if the Diploma were admitted in evidence. For reasons set out below, I am of the opinion that that conclusion falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law, and consequently the respondent did not establish that his life, liberty or security would be in danger if he were returned to India.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-41", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 61", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the intervenor did not convince me that the RAD’s decision not to admit new evidence would engage the principles of fundamental justice. It must be remembered that a foreign national claiming status as a refugee or a person in need of protection benefits from an extensive, multi-stage process that enables him to assert his claims before several levels of independent and impartial quasi-judicial tribunals and administrative decision-makers, and that he can apply for judicial review of those decisions to the Federal Court. While the right of appeal has not been recognized as a principle of fundamental justice (see Medovarski v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51 at para. 47, [2005] 2 S.C.R. 539; Chiarelli v. Canada (Minister of Employment and Immigration), [1992] 1 S.C.R. 711 at pp. 741-742, 90 D.L.R. (4th) 289), Parliament decided to enhance the former regime and to implement the provisions of the IRPA establishing the RAD. The legislator could have provided only for an appeal on the record without a hearing, but elected to open the door to the submission of new evidence and hearings in carefully limited circumstances. I fail to see how enhancing a system already broadly respectful of the international and constitutional obligations to which Parliament and the government are subject could jeopardize that same system, especially since the criteria used in respect of admissibility of new evidence are essentially similar to those normally used in judicial and quasi-judicial proceedings on appeal, in both civil and criminal matters. The constitutionality of subsection 110(4) of the IRPA has not been challenged in this case, so I will abstain from drawing any definitive conclusion in that regard.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-42", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 61–62", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, I have not been convinced that the exclusion of the Diploma by the RAD is contrary to the principles of fundamental justice, even assuming that the exclusion of that evidence affects the respondent’s right to life, liberty and security.\n\nHowever, there is more. A close reading of Doré shows that an administrative decision-maker’s obligation to enforce Charter values arises only if it is exercising statutory discretion: Doré, para. 55; Loyola, para. 35; R v. Clarke, 2014 SCC 28 at para. 16, [2014] 1 S.C.R. 612. When legislation or regulations are clear and unambiguous, it is not up to the courts to rewrite them on the pretext of ensuring conformity with Charter values (Najafi v. Canada (Minister of Public Safety and Emergency Preparedness), 2014 FCA 262 at para. 107, [2015] 4 F.C.R. 162; Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 at para. 67, [2014] 3 S.C.R. 431). Except under exceptional circumstances, the courts only have the authority to declare invalid legislation that is unconstitutional, and only if the issue is explicitly raised and the Attorney General has been notified. It is up to Parliament to amend legislation that has been declared unconstitutional so as to ensure compliance with the fundamental law of the land.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-43", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 63", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, subsection 110(4) is not written in an ambiguous manner and does not grant any discretion to the RAD. As mentioned above (see paras. 34, 35 and 38 above), the admissibility of fresh evidence before the RAD is subject to strict criteria and neither the wording of the subsection nor the broader framework of the section it falls under could give the impression that Parliament intended to grant the RAD the discretion to disregard the conditions carefully set out therein. Moreover, this approach complies perfectly with this Court’s decision in Raza. The criteria set out in that decision regarding paragraph 113(a), which, moreover, are not necessarily cumulative, do not replace explicit legal conditions; rather they add to those conditions to the extent that they are “necessarily implied” from the purpose of the provision, to reiterate this Court’s words at paragraph 14 of Raza. Otherwise, this would mean ignoring the conditions set out at subsection 110(4) and then delving into a balancing exercise between Charter values and the objectives sought by Parliament. In the absence of a direct challenge to this legislation, it should be given effect and the RAD has no choice but to comply with its requirements.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-44", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 64–65", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In conclusion, I am of the view that there is no valid reason not to apply, for the most part, the implicit criteria established by this Court in Raza to subsection 110(4) of the IRPA. The wording of that provision is almost identical to the wording of paragraph 113(a), and the context in which it was adopted as well as the underlying judicial policy considerations support an identical approach despite the fact that they apply to separate proceedings and different decision-makers. In any case, the issue seems rather academic to me, to the extent that the implicit criteria from Raza do not truly add to the wording of subsection 110(4) but are necessarily implied. Except for the materiality of evidence, which does not lend itself to the same analysis in an appeal and which subsection 110(6) already considers in determining whether a new hearing should be held, it is not necessary to interpret subsection 110(4) and paragraph 113(a) differently. It goes without saying that the RAD always has the freedom to apply the conditions of subsection 110(4) with more or less flexibility depending on the circumstances of the case.\n\nThus, it is my opinion that the RAD did not err in using “mutatis mutandis” the implicit criteria from Raza to interpret subsection 110(4); this interpretation seems not only reasonable but also correct. Furthermore, the RAD could reasonably find that the Diploma was inadmissible because it could not be considered fresh evidence. The RAD essentially based its finding on the fact that the respondent had access to the Diploma at the time of his hearing before the RPD on April 2, 2013, since the CBSA had sent a copy of it to his counsel and he could have obtained a copy from the CBSA and submitted it himself as evidence to the RPD.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-45", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 66", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that the immigration officer apparently did not submit the Diploma to the RPD, as he should have under subsection 3(5) of the RPD Rules. Furthermore, the respondent contends that he only learned in June 2013 that his lawyer before the RPD had received a copy of that document in February 2013. However, that claim by itself is not enough to relieve the respondent of any responsibility. It is settled that an applicant must live with the consequences of the actions of his counsel: Cove c. Canada (Minister of Citizenship and Immigration), 2001 FCT 266 at paras. 6-11, [2001] F.C.J No. 482. As the Federal Court noted in Nagy v. Canada (Minister of Citizenship and Immigration), 2013 FC 640 at para. 60, [2013] F.C.J No. 664, “[t]here is a high threshold governing the circumstances and evidentiary criteria that must be met before the Court will grant relief under section 18.1 of the Federal Courts Act on the basis of the negligence of counsel.” See also: Bedoya v. Canada (Minister of Citizenship and Immigration), 2007 FC 505 at para. 19, [2007] F.C.J No. 680.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-46", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 67", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this respect, I would note that it is settled in Federal Court immigration jurisprudence that an allegation of professional incompetence of counsel will not be upheld if there is no evidence that a complaint has been filed with the competent authorities of the bar to which the counsel belongs or without an explanation personally issued by the professional involved: see as examples, Odafe v. Canada (Minister of Citizenship and Immigration), 2011 FC 1429 at para. 8, [2011] F.C.J No. 1762; Teganya v. Canada (Minister of Citizenship and Immigration), 2011 FC 336 at paras. 26-37, [2011] F.C.J No. 430; Parast v. Canada (Minister of Citizenship and Immigration), 2006 FC 660 at para. 11, [2006] F.C.J No. 844; Yang v. Canada (Minister of Citizenship and Immigration), 2008 FC 269 at paras. 17-28, [2008] F.C.J No. 344. Indeed, the Federal Court adopted a protocol in March 2014 outlining the procedure when a party wishes to make such an allegation, and in particular setting out the obligation to send a notice to counsel who is the subject of the allegations that are to be made against him or her and invite him or her to provide a response that could be submitted to the Court (Procedural Protocol Re: Allegations Against Counsel or Other Authorized Representative in Citizenship, Immigration and Protected Person Cases before the Federal Court (March 7, 2014), on line: Federal Court of Canada ).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-47", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 68–70", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the judge determined that it was unreasonable for the RAD to expect the applicant to know of the complaints procedure before the Barreau du Québec, much less be willing to attack the competence and ethics of his former counsel. I do not share that opinion. Not only does the judge not cite any precedent to support her finding, but she also ignores the fact that the applicant was represented by experienced counsel before the RAD.\n\nIn short, the RAD could reasonably conclude in the circumstances that the Diploma did not constitute new evidence. This piece of evidence is not new; it was accessible to the respondent, and his lawyer had received a copy from the CBSA. Since the respondent had not raised the issue of his lawyer’s incompetence nor lodged any complaint against her with the appropriate authorities, the RAD had no choice but to reject this evidence in accordance with subsection 110(4) of the IRPA.\n\nLastly, the judge invoked the possibility that inadmissibility of evidence could give rise to “serious issues of procedural equity” because a claimant who is deserving of a hearing could be refused one. In her opinion, such was the case here: “In the case at bar, the applicant was in fact denied a hearing because the 2002 school diploma was deemed inadmissible” (para. 53).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-48", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "paras 71–72", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, as mentioned above, holding a hearing is not automatic simply because new evidence is admitted before the RAD. This new evidence must still meet the three criteria set out in subsection 110(6) of the IRPA. In this case, there was not even an attempt to show how the Diploma was determinative in establishing the respondent’s credibility and how it would make up for the various shortcomings that the RPD identified in his testimony and that were confirmed by the RAD. It should be recalled that the RPD found that the respondent’s narrative was deficient in several respects: he contradicted himself about precisely when his father had had a heart attack; neither his allegations of torture nor his father’s purported medical condition are corroborated by the medical evidence; he presented as evidence fraudulent and altered documents; and he took no steps to obtain probative, acceptable documents with which to establish his identity. In light of all these factors, it is far from a given that the Diploma would be essential in deciding the respondent’s refugee protection claim and would warrant allowing this claim.\n\nConsequently, it cannot be assumed that admitting this document into evidence would have led to a hearing or that its rejection undermined procedural fairness. Nor can one invoke the possibility that a hearing might have resulted from the admission into evidence of the Diploma to argue for a flexible interpretation of subsection 110(4): not only does holding a hearing in the present case seem highly theoretical, but the admissibility of a piece of evidence cannot be assessed by taking account of the consequences that could result for the purposes of applying subsection 110(6).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-49", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 73", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "For all the above reasons, I am of the opinion that the appeal should be allowed, that the Federal Court judgment should be set aside and that the RAD decision should be confirmed. Accordingly, the respondent is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the IRPA.", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-50", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 74", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I would answer the two certified questions submitted to this Court as follows: 1. What standard of review should be applied by this Court when reviewing the Refugee Appeal Division’s interpretation of subsection 110(4) of the Immigration and Refugee Protection Act, SC 2001, c 27? Answer: The RAD’s interpretation of subsection 110(4) of the IRPA must be reviewed in light of the reasonableness standard, in accordance with the presumption that an administrative agency’s interpretation of its home statute should be shown deference by the reviewing court. 2. In considering the role of a Pre-Removal Risk Assessment officer and that of the Refugee Appeal Division of the Immigration and Refugee Board, sitting in appeal of a decision of the Refugee Protection Division, does the test set out in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 for the interpretation of paragraph 113(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 apply to its subsection 110(4)? Answer: To determine the admissibility of evidence under subsection 110(4) of the IRPA, the RAD must always ensure compliance with the explicit requirements set out in this provision. It was also reasonable for the RAD to be guided, subject to the necessary adaptations, by the considerations made by this Court in Raza. However, the requirement concerning the materiality of the new evidence must be assessed in the context of subsection 110(6), for the sole purpose of determining whether the RAD may hold a hearing. “Yves de Montigny” J.A. “I agree M. Nadon J.A.” “I agree Johanne Gauthier J.A.” Translation FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT THE FEDERAL COURT DATED October 28, 2014, DOCKET NUMBER IMM-6711-13 (2014 FC 1022).", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-143152-51", + "doc_type": "caselaw", + "act_code": "2016 FCA 96", + "act_short": "Singh (new evidence)", + "act_name": "Canada (Citizenship and Immigration) v. Singh", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96", + "marginal_note": "para 74", + "heading": "Admitting new evidence at the Refugee Appeal Division under IRPA s. 110(4)", + "part": "Federal Court of Appeal", + "division": "", + "text": "DOCKET: A-512-14 STYLE OF CAUSE: MINISTER OF CITIZENSHIP AND IMMIGRATION v. PARMINDER SINGH and CANADIAN ASSOCIATION OF REFUGEE LAWYERS PLACE OF HEARING: MONTRÉAL, QUÉBEC DATE OF HEARING: OCTOBER 8, 2015 REASONS FOR JUDGMENT: JUSTICE De MONTIGNY CONCURRED IN BY: NADON J.A. GAUTHIER J.A. DATED: mARCH 29, 2016 APPEARANCES: Mario Blanchard Daniel Latulippe FOR THE appellant Stéphanie Valois FOR THE RESPONDEnt Anthony Navaneelan Aadil Mangalji for the intervener SOLICITORS OF RECORD: William F. Pentney Deputy Attorney General of Canada Montréal, Quebec FOR THE APPELLANT Me Stéphanie Valois Lawyer Montréal, Québec FOR THE RESPONDENT Mamann, Sandaluk and Kingwell LLP Toronto, Ontario Long Mangalji LLP Toronto, Ontario FOR THE INTERVENER", + "current_to": "2016-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/143152/index.do" + }, + { + "id": "fca-37663-1", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 1–4", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Luis Alberto Hernandez Febles, a national of Cuba, was convicted in the United States in 1984 and 1993 of assault with a deadly weapon. He came to Canada in 2008 after completing his prison sentences and claimed refugee status.\n\nThe Refugee Protection Division of the Immigration and Refugee Board (RPD) held that Article 1F (b) of the United Nations Convention relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No 6 (Convention) excluded him from the definition of a refugee. This was because his convictions in the United States provided serious reasons for considering that he had committed “a serious non-political crime” outside Canada.\n\nMr Febles says that alcohol was a factor that led to his commission of these crimes, he has served his sentences, and is now rehabilitated. He argues that the purposes of Article 1F (b) are to prevent ordinary criminals from escaping local criminal justice by acquiring refugee status, and to protect the public of a receiving state from convicted criminals who are dangerous. Since Mr Febles had served his sentence, he was not a fugitive from justice. Consequently, he says, the RPD was obliged to consider whether, despite his criminal record, he represents a danger to the Canadian public.\n\nThe question to be decided in this appeal is whether the RPD erred in law because, in determining if Mr Febles was excluded from refugee status on the ground that he had committed a “serious” crime within the meaning of Article 1F (b), it failed to consider whether he was rehabilitated and posed a present danger.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-2", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 5–8", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the RPD correctly concluded that whether a refugee claimant who has served his sentence poses a present danger to the Canadian public is not relevant for determining the seriousness of a crime for the purpose of Article 1F (b). Accordingly, I would dismiss the appeal from the decision of the Federal Court (2011 FC 1103), in which Justice Scott (Application Judge) denied Mr Febles’ application for judicial review to set aside the RPD’s decision. B. FACTUAL BACKGROUND\n\nMr Febles left Cuba in 1980 and was accepted by the United States as a refugee by virtue of his fear of persecution as a political dissident. However, he subsequently lost his refugee status as a result of his criminal convictions, and is subject to an administrative warrant of removal from the United States.\n\nMr Febles entered Canada illegally on October 12, 2008, and two days later applied for refugee protection on the ground of a well-founded fear of persecution in Cuba for his political beliefs. During his interview with an officer of the Canada Border Services Agency (CBSA) to determine whether the claim was eligible to be referred to the RPD, Mr Febles revealed his criminal convictions in the United States.\n\nOn the basis of a report filed by a CBSA officer, Mr Febles was referred to the Immigration Division of the Immigration and Refugee Board for an inadmissibility hearing. Following that hearing, Mr Febles was found to be inadmissible and a deportation order was issued dated June 3, 2010. The basis of the inadmissibility finding was that he had been convicted of an offence outside Canada for which he could have been sentenced to a maximum of at least 10 years’ imprisonment if it had been committed in Canada.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-3", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 9–10", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Despite Mr Febles’ criminal record, a CBSA officer decided not to request the Minister of Citizenship and Immigration (MCI) for an opinion as to whether his claim was ineligible to be referred to the RPD on the ground that he posed a danger to the public in Canada. Nonetheless, on August 10, 2010, the Minister of Public Safety and Emergency Preparedness (MPSEP) filed a notice of intervention in Mr Febles’ hearing before the RPD, alleging that Article 1F (b) excluded him from the definition of a refugee because there were serious reasons for considering that he had committed a serious non-political crime outside Canada. C. DECISION OF THE RPD\n\nIn its reasons for decision, dated October 27, 2010, the RPD described the circumstances surrounding the crimes of which Mr Febles had been convicted in 1984 and 1993, that is, assaults with a deadly weapon other than a firearm. He had been sentenced to two years in prison and three years on probation for each of these offences. He testified that he served just over a year of the first sentence, and then spent more time in prison for breaching the conditions of his probation. He served the entirety of the second sentence and observed his probation conditions. He said that since 1993 he has been sober and has not re-offended.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-4", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 11–13", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Focussing on the second offence, the RPD noted that Mr Febles’ conviction had been for an offence for which a maximum sentence of at least 10 years’ imprisonment could be imposed if committed in Canada, and that this raised a presumption that the crime was “serious”. However, it also stated that this presumption could be rebutted by other factors. Nonetheless, the RPD concluded that the gravity of Mr Febles’ crime excluded him from refugee protection, even though he had committed the more recent of the crimes 17 years ago, was remorseful, had served his sentence, and has chosen “to follow a straighter path” since 1993 (RPD reasons at para. 24). D. DECISION OF THE FEDERAL COURT\n\nThe Application Judge relied on Jayasekara v. Canada (Minister of Citizenship and Immigration), 2008 FCA 404, [2009] 4 F.C.R 164 at para. 44 (Jayasekara) for the proposition that in determining whether a refugee claim is excluded by Article 1F (b) a court should not balance the seriousness of the crime as indicated by the maximum punishment that it carries if committed in Canada against “factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin”.\n\nAccordingly, the Application Judge held (at para. 50) that Mr Febles’ completion of his sentence was relevant only to the seriousness of the crime, not to “rehabilitation, expiation, recidivism and on-going danger.” The RPD was precluded from taking rehabilitation into account in assessing the seriousness of the crimes committed by Mr Febles. It had therefore not unlawfully fettered the exercise of its discretion by failing to address whether he currently posed a danger to the Canadian public.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-5", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 14–16", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Application Judge certified the following question for appeal to this Court pursuant to paragraph 74(d) of the Immigration and Refugee Protection Act, 2001 S.C., c. 27 (IRPA): When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue?\n\nFor the reasons that follow I would answer the certified question in the negative and dismiss the appeal. E. LEGISLATIVE FRAMEWORK\n\nAn understanding of the issue raised in this appeal depends in part on locating it within the complex statutory scheme created by IRPA for the consideration of criminality in a variety of contexts.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-6", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 17", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraph 36(1)(b) of IRPA applies to all non-nationals and describes the circumstances in which they are inadmissible to Canada on the basis of criminal convictions outside Canada. However, paragraph 36(3)(c) provides that persons to whom paragraph 36(1)(b) applies are not inadmissible if, after the prescribed period, they satisfy the MCI that they have been rehabilitated. 36. (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for … (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or … 36. (3) The following provisions govern subsections (1) and (2): … (c) the matters referred to in paragraphs (1)(b) and (c) and (2)(b) and (c) do not constitute inadmissibility in respect of a permanent resident or foreign national who, after the prescribed period, satisfies the Minister that they have been rehabilitated or who is a member of a prescribed class that is deemed to have been rehabilitated; 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] 36. (3) Les dispositions suivantes régissent l’application des paragraphes (1) et (2) : […] c) les faits visés aux alinéas (1)b) ou c) et (2)b) ou c) n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui, à l’expiration du délai réglementaire, convainc le ministre de sa réadaptation ou qui appartient à une catégorie réglementaire de personnes présumées réadaptées;", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-7", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 18", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 101 of IRPA describes claims that are not eligible to be referred to the RPD. These include claims for refugee protection by claimants who are inadmissible to Canada for serious criminality under subsection 36(1) and whom the MCI believes are a danger to the public in Canada. 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless … (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. 101. (1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) — , grande criminalité ou criminalité organisée.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-8", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 18–20", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : […] b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada.\n\nEven when a claim is not ineligible to be referred to the RPD under section 101, in some situations the RPD must reject it. Article 1F (b) of the Convention, which section 98 of IRPA incorporates into IRPA by reference, sets out the situation relevant to the present appeal. 98. A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger.\n\nArticle 1F (b) of the Refugee Convention provides as follows. 1F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: … (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; … 1F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : […] b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; […]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-9", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although excluded from refugee status by the above provisions and subject to a removal order on the ground of inadmissibility, a claimant may apply to the MCI for a pre-removal risk assessment (PRRA). However, paragraph 112(3)(c) provides that applicants for protection on a PRRA cannot be granted protection as refugees as defined by section 96 if their claim for refugee protection was rejected pursuant to Article 1F. Paragraph 113(d)(i) states that an immigration officer will consider the PRRA of these applicants for protection on the basis of the risk factors set out in section 97 (death, torture, or cruel and unusual treatment or punishment) and whether they are a danger to the public in Canada. Even if denied refugee status by subsection 112(3), successful applicants for a PRRA can obtain a stay of removal by virtue of subsection 114(1). 112. … (3) Refugee protection may not result from an application for protection if the person … (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; … (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; … 113.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-10", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 21", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consideration of an application for protection shall be as follows: … (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or … 112. […] (3) L’asile ne peut être conféré au demandeur dans les cas suivants : […] b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; […] c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; […] 113. Il est disposé de la demande comme il suit : […] d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, […] 114. (1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. 114.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-11", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 21–23", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. F. ANALYSIS (i) Standard of review\n\nMr Febles argues that correctness is the standard of review applicable to the RPD’s interpretation of Article 1F (b) of the Convention, which is incorporated into IRPA by section 98, the RPD’s enabling statute. Although reasonableness is now presumed to be the standard of review normally applied to a tribunal’s interpretation of its enabling statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39), Mr Febles submits that the presumption of reasonableness is rebutted in this case.\n\nThe Minister takes no position on this issue, arguing that the appeal must fail whichever standard of review applies, and that it is therefore unnecessary for the Court to decide the issue. Federal Court jurisprudence on the standard of review applicable to the RPD’s interpretation of Article 1F (b) is not settled. For example, the Application Judge in the present case applied the reasonableness standard, while in Feimi v. Canada (Minister of Citizenship and Immigration), 2012 FC 262, the companion case before us, a different Application Judge applied correctness. The existence of this kind of uncertainty is sufficient reason for this Court to decide the standard of review applicable to the RPD’s interpretation of Article 1F (b).", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-12", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 24–26", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree with Mr Febles that the normal presumption that reasonableness is the standard of review applicable to tribunals’ interpretation of their enabling statute does not apply in this case. Article 1F (b) is a provision of an international Convention that should be interpreted as uniformly as possible: see, for example, Jayasekara at para. 4. Correctness review is more likely than reasonableness review to achieve this goal, and is therefore the standard to be applied for determining whether the RPD erred in law by interpreting Article 1F (b) as precluding consideration of Mr Febles’ post-conviction rehabilitation and his present dangerousness. Further, the interpretation of Article 1F (b) does not give rise to any ambiguity.\n\nAccordingly, the prior jurisprudence of this Court applying the correctness standard of review to the RPD’s interpretation of Article 1F (b) should be regarded as having satisfactorily resolved the issue: Dunsmuir para. 62. (ii) Is rehabilitation or present dangerousness relevant to deciding if a non-political crime is “serious”?\n\nMr Febles concedes that a crime punishable by a maximum of 10 years’ imprisonment if committed in Canada is presumed by Canadian courts to be “serious” for the purpose of Article 1F (b), and that the crimes of which he was convicted in the United States fall into this category.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-13", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 27–29", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, he argues that the seriousness of a crime must be assessed as of the time when the exclusion issue comes to be decided. Mr Febles submits that the purpose of Article 1F (b) relevant to the present case is to protect receiving states from having to grant refugee status to dangerous criminals. Consequently, a crime should not normally be regarded as “serious” if the claimant has served the sentence imposed and is no longer dangerous. Accordingly, the RPD erred in law when it failed to consider his rehabilitation after 1993 and whether he currently posed a danger to the Canadian public.\n\nThe Application Judge regarded Jayasekara as precluding the RPD from considering whether Mr Febles was rehabilitated and currently dangerous. Mr Febles argues that Jayasekara does not resolve the issue because it is either distinguishable or wrong and should not be followed. (a) What Jayasekara decided\n\nThe certified question put to the Court in Jayasekara was whether the fact that a refugee claimant who had committed a serious crime outside Canada had served his sentence enabled him to avoid the application of Article 1F (b). After examining Canadian and international jurisprudence on the issue, the Court answered the question in the negative.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-14", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 30–32", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the heart of the Court’s reasoning in Jayasekara is contained in paragraph 44 of the reasons where, writing for the Court, Létourneau J.A. said: I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F (b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction. … In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin. …. [Emphasis added]\n\nAn argument that a crime may be regarded as less serious years after its commission because the claimant is rehabilitated and is no longer a danger to the public would seem inconsistent with this passage. Rehabilitation is indisputably a factor “extraneous to the facts and circumstances underlying the conviction”. It is therefore not to be balanced against the presumed seriousness of the crime arising from the fact that, if committed in Canada, the crime is punishable by a maximum of at least 10 years’ imprisonment.\n\nHowever, Mr Febles says that, while Jayasekara decides that completing a sentence does not in itself remove a claimant from the application of Article 1F (b), it is still a factor that the RPD may consider. If the RPD may consider sentence completion, he argues, it may also consider other post-conviction facts, including rehabilitation.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-15", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 33–35", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, Mr Febles points to paragraph 41 of the reasons of Létourneau J.A., where he stated that if the length or completion of a sentence is to be considered under Article 1F (b), “it should not be considered in isolation.” However, I cannot attach the same significance as Mr Febles to this single reference to the completion of a sentence.\n\nFirst, the discussion following paragraph 41 explains why the length of a sentence is an unreliable guide to the seriousness of a crime, and hence is often of little value on assessing the seriousness of the crime. The completion of a sentence is not even mentioned in this discussion. Second, neither the length nor completion of a sentence is included in the factors listed in paragraph 44 that may rebut the presumption of seriousness arising from the maximum sentence that could be imposed if the crime had been committed in Canada. Third, to interpret Jayasekara as allowing members of the RPD the discretion to consider completion of a sentence would likely lead to a lack of consistency in RPD decision-making bordering on arbitrariness.\n\nIn short, I agree with Justice Mosley in Camacho v. Canada (Minister of Citizenship and Immigration), 2011 FC 789 at para. 16, that it follows from the reasoning in Jayasekara that the mitigating circumstances to be considered by the RPD when determining whether a crime is “serious” for the purpose of Article 1F (b) do not include whether the claimant is rehabilitated and a danger to the public in Canada. These considerations are “extraneous to the facts and circumstances underlying the conviction”. (b) Should Jayasekara be followed?", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-16", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 36–38", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the alternative, Mr Febles says that the reasoning in Jayasekara is flawed and should not be followed. He identifies what he says are two errors in the Court’s reasoning. First, the Court erred in distinguishing Chan v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 390 (C.A.) (Chan) on the ground that there had been a material amendment to the legislation after Chan was decided. Second, the authorities cited for the propositions contained in paragraph 44 do not in fact support them.\n\nIn order to deal with the first point, it is necessary to briefly retrace the history of the interpretation of Article 1F (b) by this Court.\n\nChan held that Article 1F (b) applied to refugee claimants who were seeking to avoid extradition from Canada, and not to those who had been convicted of a crime outside Canada and had served their sentence before arriving here. To interpret the exclusion clause as applicable to the latter category of claimants would, said the Court, conflict with the scheme of the legislation, and operate to automatically deny that person’s right to a refugee hearing, regardless of [the person’s] attempts at rehabilitation and whether or not [they] constitute a danger to the Canadian public. In particular, the Court noted that criminality does not automatically render individuals inadmissible if the MCI is satisfied that they are rehabilitated. In the passage quoted above the Court may have left open the possibility that convicted criminals who have served their sentence could be excluded by Article 1F (b) if they were a danger to the public in Canada.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-17", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 39–40", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court subsequently took a broader view of Article 1F (b) than that advanced in Chan. Thus, in Zrig v. Canada (Minister of Citizenship and Immigration), 2003 FCA 178, [2003] 3 F.C. 761, the claimant relied on Chan to argue that Article 1F (b) did not apply to him because he could not be extradited for the crimes that there were serious reasons for considering that he had committed, namely, being complicit by association in serious non-political crimes committed by an organization in which he had a leadership role.\n\nThe Court did not agree. Writing for the majority, Nadon J.A. said (at paras. 66 and 79 in particular) that a refugee claimant could be excluded under Article 1F (b) when there were serious reasons for considering that he had committed a serious non-political crime. It was not relevant for this purpose, he said, that the claimant could not be extradited because, for example, Canada had not concluded an extradition treaty with the state where the claimant’s crime was allegedly committed, or a specific crime could not be attributed to the claimant.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-18", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 41–42", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In concurring reasons, Décary J.A. (at paras. 118-129) reviewed the various purposes that Article 1F (b) was intended to serve, including (at para. 118) … ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. He further explained this purpose by saying (at para. 119): … [It] indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This … purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum.\n\nI should point out that, unlike Mr Febles, Zrig had not been convicted of any crime, much less served a sentence. Hence, in formulating his understanding of the purposes of Article 1F (b), Décary J.A. was not addressing the specific question at issue in the present appeal, namely, whether Article 1F (b) applies to a refugee claimant who has completed a sentence for a crime which, if committed in Canada, is punishable by a maximum of at least 10 years’ imprisonment, but who poses no danger to the public.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-19", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 43–45", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is thus clear from Zrig that, even before Jayasekara was decided, the Court had disavowed the holding in Chan that Article 1F (b) only extends to preventing a refugee claimant from avoiding extradition. Jayasekara hammered another nail into Chan’s coffin by deciding that Article 1F (b) does not cease to apply because the claimant has been convicted of a serious crime and has completed the sentence. This conclusion had been foreshadowed by Décary J.A. in Zrig, where he said (at para. 129) that Article 1F (b) enabled a state to exclude perpetrators of serious crimes, whether or not they had been convicted and served the sentences imposed on them.\n\nFurther, by excluding facts “extraneous to the facts and circumstances underlying the conviction” from the factors to be considered in assessing the seriousness of the crime, the Court in Jayasekara in effect overruled the holding in Chan that Article 1F (b) does not exclude a claimant who has completed his sentence, unless, perhaps, the claimant poses a danger to the public in Canada.\n\nI am willing to assume for present purposes that the Court in Jayasekara erred in saying that statutory amendments had undermined the conclusion in Chan that a wider reading of Article 1F (b) was inconsistent with the scheme of the statute. Nonetheless, this error is an insufficient basis for finding that the decision in Jayasekara was wrongly decided and should not be followed. Having approved the multiple purposes of Article 1F (b) that Décary J.A. identified in Zrig and having reviewed international jurisprudence, the Court clearly intended to restate the applicable law. In these circumstances, the error alleged is not material. In the light of Zrig and Jayasekara, it is clear that Chan is no longer good law.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-20", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 46–48", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nor do I agree with Mr Febles’ second ground for saying that Jayasekara was wrongly decided, namely that the cases cited by the Court in Jayasekara do not support the propositions in paragraph 44 of the reasons. In my view, only one of those cases (Miguel-Miguel v. Gonzales, 500 F.3d 941) was arguably not directly on point. This is not a basis on which Jayasekara can be said to have been wrongly decided. (c) Interpreting Article 1F (b)\n\nThis is sufficient to dispose of the appeal. Nonetheless, because the parties have fully canvassed the meaning of Article 1F (b) as it appears in IRPA, and the issue is important, I shall address Mr Febles’ broader argument that Jayasekara should not be followed because it rests on a fundamental misunderstanding of the purposes of Article 1F (b) and renders incoherent the scheme of IRPA with respect to criminality.\n\nMr Febles’ argument is that Article 1F (b) applies first and foremost to refugee claims by fugitives from justice in the country where they are suspected of having committed a serious non-political crime. It was intended to apply only exceptionally to those who have completed their sentence, that is, when they pose a continuing danger to the receiving state.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-21", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 49–51", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This position is supported by the United Nations High Commissioner for Refugees, (UNHCR) Guidelines on International Protection: Application of Exclusion Clause: Article 1F of the Convention relating to Refugees, (HCR/GIP/03/05, 4 September, 2003) (Guidelines). Paragraph 23 of the Guidelines states that a claimant’s expression of regret for the crime may be considered in determining whether exclusion is justified. The UNHCR’s Handbook on Procedures and Criteria for determining Refugee status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees (HCR/IP/4/Eng/REV.1 Reedited, Geneva, January 1992, UNHCR 1979) also indicates that Article 1F (b) was intended to protect receiving states from having to afford refugee protection to dangerous criminals: see paras. 148 and 157.\n\nThese documents are not determinative of the interpretation of the Convention. In my view, on the basis of the text of Article 1F (b), its known purposes, the scheme of IRPA, and international jurisprudence, Article 1F (b) should be interpreted as excluding rehabilitation and present dangerousness from the assessment of the seriousness of a crime committed by a refugee claimant before coming to Canada. (i) text\n\nArticle 1F (b) applies to “a serious crime of a non-political nature”. It is drafted in very broad terms. Unlike other provisions of IRPA, Parliament has not expressly limited the application of the Article to claimants who pose a current danger to the Canadian public. Courts should normally avoid an interpretation of legislation that requires words to be read into it: R. v. McIntosh, [1995] 1 S.C.R. 686 at para. 26; and see S. v. Status Appeals Authority, [1998] 2 NZLR 291 (CA) applying this interpretative principle to Article 1F (b).", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-22", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 52–55", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the ordinary meaning of the text of Article 1F (b) is that whether a crime is serious for exclusion purposes is to be determined on the basis of the facts listed by this Court in Jayasekara. The seriousness of a crime is to be assessed as of the time of its commission; its seriousness does not change over time, depending on whether the claimant is subsequently rehabilitated and ceases to pose a danger to the public. (ii) purposes\n\nThe interpretation of statutory language must always be considered in light of the purposes of the provision in question. However, when the meaning of a statute seems clear and unequivocal from its text, statutory purpose may be less important in the interpretative exercise, although “the court must always seek to read the provisions of an Act as a harmonious whole”: Canada Trustco Mortgage Co. v. Canada, 2005 SCC 54, [2005] 2 S.C.R. 601 at para. 10.\n\nMr Febles’ central argument is that because he has served his sentence, and is therefore not a fugitive from justice in the United States, the only purpose of Article 1F (b) relevant to the facts of this case is the protection of the public in Canada from currently dangerous criminals.\n\nAccordingly, he says, the RPD could only have found that he was excluded from refugee status after considering whether he was rehabilitated and currently posed a danger to the public in Canada. An interpretation of Article 1F (b) to include non-fugitives who are rehabilitated and pose no danger to the host state would, he argues, be inequitable.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-23", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 56–58", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "I do not agree. In my view, Mr Febles’ argument oversimplifies the purposes underlying Article 1F (b). In Jayasekara, Létourneau J.A. quoted with approval (at para. 28) the description of the various purposes of Article 1F (b) identified by Décary J. A. in Zrig, which I have set out at paragraph 41 of these reasons.\n\nDécary J.A. was not, of course, dealing with the issue raised by the present appeal. It is not altogether clear whether he was of the view that the purposes of Article 1F (b) requires a discrete consideration of the claimant’s present dangerousness, or whether he considered that the dangerousness of a claimant was inherent in the nature of the crime committed.\n\nHowever, the issue now before us has recently been addressed by the European Court of Justice and the German Federal Administrative Court in a case involving a refugee claimant who had not completed his sentence in Turkey before he went to Germany and claimed refugee status. The Courts stated that Article 1F (b), which is incorporated into the law of the European Union by Directive 2004/83/EC, does not require that a refugee claimant with a serious criminal conviction must also pose a present danger to the receiving state. Because international law should be interpreted as uniformly as possible, this Court should attach significant weight to pronouncements by senior courts in other jurisdictions on the very issue that is before us.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-24", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 59", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in B (Area of Freedom, Security and Justice), [2010] EUECJ C-57/09 (B), the European Court wrote (at para. 104): … the grounds for exclusion at issue were introduced with the aim of excluding from refugee status persons who are deemed to be undeserving of the protection which that status entails and of preventing that status from enabling those who have committed certain serious crimes to escape criminal liability. Accordingly, it would not be consistent with that dual objective to make exclusion from refugee status conditional upon the existence of a present danger to the host Member State. [Emphasis added]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-25", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 60", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The German Federal Administrative Court (BVerwG 10 C 48.07 OVG 8 A 2632/06.A, October 14, 2008), which had referred B to the European Court, delved deeper into the purposes underlying Article 1F (b) by examining its legislative history. Thus, it wrote (at paras. 29-30): [The exclusion clauses] are intended to protect refugee status from abuse, by keeping it from being granted to undeserving applicants. … According to the Travaux Préparatoires [of the Convention], the fundamental difference between reasons for exclusion – tied to previous personal misconduct – and the exceptions from the non-refoulement imperative – intended to protect the host state – was evident in the deliberations. In the case of the exclusion clauses, the deciding factor for the representatives of the states was not whether the refugee currently posed a danger, but the distinction between ‘bona fide’ and criminal refugees. … The group of persons covered by the exclusion clauses because of their misconduct, was not to be set on a par with ‘bona fide refugees.’ The intent was to prevent refugee status from being discredited by including criminals in the group of recognised refugees (‘refugees whose actions might bring discredit on that status’…). There is no support in either the background materials to the Geneva Refugee Convention or the international practice of nations for the UNHCR’s opinion that the aim and purpose of considering a serious non-political crime a reason for exclusion is to protect the community of a receiving country from the danger as admitting a refugee who has committed a serious common crime. [Emphasis added]", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-26", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 61–63", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Court stated its conclusion succinctly (at para. 28): Mere ‘unworthiness for protection’ on the basis of prior acts suffices for the application of the exclusion clauses; it is not necessary that the foreigner should still pose such dangers as he manifested in his previous conduct.\n\nI agree that it is clear from the Travaux Préparatoires that the drafters did not intend to limit the exclusion provision to fugitives from justice. However, I am less sure than the Courts in B that the Travaux Préparatoires conclusively demonstrate that the drafters intended to exclude other refugee claimants with a serious criminal record, even though they were rehabilitated and not a danger. Much of the discussion involved the definition of the crimes that would exclude a claimant from refugee status, and the concern of the United Kingdom Delegate that individuals who had committed a minor offence should not be excluded. On the other hand, I do not see in the Travaux Préparatoires evidence of an intention on the part of the Delegates only to exclude from refugee status criminals convicted of a serious crime who have served their sentence if they remain dangerous.\n\nI conclude, therefore, that the purposes underlying Article 1F (b) do not so clearly limit its intended scope to protecting the state of refuge from currently dangerous criminals as to warrant an interpretation that is markedly narrower than the ordinary meaning of the text. (iii) statutory context", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-27", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 64–66", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr Febles argues that a theme running through IRPA is that the adverse consequences that flow from serious criminality can be mitigated if the claimant satisfies the MCI that she is rehabilitated. Thus, he says, it would be inconsistent with the statutory scheme of IRPA to interpret Article 1F (b) as excluding from refugee status those who have committed serious crimes outside Canada, regardless of how long ago the crimes were committed or whether they are rehabilitated and currently pose no danger to the public.\n\nThe problem with this argument, in my view, is that it pays insufficient attention to the different purposes served by the provisions in question. A claim is ineligible even to be referred to the RPD for adjudication if the claimant is inadmissible for serious criminality by virtue of a conviction outside Canada and the Minister is of the opinion that the claimant is a danger to the public in Canada: IRPA, paragraphs 101(1)(f), and (2)(b). A purpose of this provision is to enable the speedy removal from Canada of dangerous persons: Harris v. Canada (Minister of Citizenship and Immigration), 2001 FCA 235, [2001] 4 F.C. 495 at para. 28.\n\nThere is no inconsistency between a CBSA officer’s decision not to seek an opinion from the MCI on whether Mr Febles’ claim was ineligible to be referred to the RPD because of his present dangerousness, and the decision of the MPSEP to intervene at the RPD to argue that Article 1F (b) excludes Mr Febles from the refugee definition because of his convictions. The tests for ineligibility and exclusion are simply not the same.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-28", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 67–69", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dangerousness to the Canadian public is also relevant under IRPA’s provisions on pre-removal risk assessment. Thus, under the statutory provisions relevant to the present case, a claim for protection by Mr Febles, a person inadmissible by reason of serious criminality, would be considered by the MCI on the basis of the risks set out in section 97 of IRPA, and whether he is a danger to the public: paragraphs 112(3)(b) and 113(d)(i). Thus, protecting the public from convicted criminals who still pose a danger to Canada may trump a claim for protection.\n\nIf an application by Mr Febles for protection were allowed on a PRRA, on the ground that the personal risks that he would face if returned outweighed the risk to the Canadian public if he remained, his removal would be stayed: paragraph 114(1)(b). Further, section 7 of the Canadian Charter of Rights and Freedoms (Charter) will normally also prevent the MCI from removing an individual to a country where their Charter-protected rights may be in jeopardy: Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 58.\n\nApplying for and obtaining a stay of removal from the MCI under the PRRA provisions may not be as satisfactory to Mr Febles on grounds of process and substance as an application to the RPD for the grant of refugee protection and the rights attached to that status. Nonetheless, protection would comply with the non-refoulement principle for those who are excluded from refugee status for serious criminality, but if removed are at risk of death, torture, cruel and unusual treatment or punishment, or the deprivation of other rights guaranteed by section 7 of the Charter.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-29", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 70–73", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The availability of protection under the PRAA provisions for non-dangerous criminals thus goes a long way to answering Mr Febles’ argument that it is inequitable to exclude individuals from refugee protection on the basis of their criminal record and the surrounding facts without any consideration of whether they are currently dangerous.\n\nMr Febles also argues that the broad interpretation of Article 1F (b) is inconsistent with the provision that individuals are not inadmissible under subsection 36(1) of the IRPA if they satisfy the MCI that they are rehabilitated and meet the criteria prescribed in paragraph 36(3)(c). It suffices to say that the purposes served by the inadmissibility provisions are different from those of Article 1F (b).\n\nFor example, one reason for the exclusion of claims for refugee protection by those who have committed serious crimes appears to be to protect the integrity of refugee status, a purpose for which an assessment of their current dangerousness is irrelevant. In addition, as already noted, those excluded from refugee status on the ground of serious criminality may still be permitted to remain in Canada if facing any of the specified risks in the country to which they would otherwise be removed.\n\nIn summary, there is, in my view, no inconsistency between a broad interpretation of Article 1F (b) and other provisions of the IRPA dealing with criminality that would warrant interpreting the broad language of Article 1F (b) in the limited manner urged by Mr Febles. The scheme of IRPA suggests to me that when Parliament intends to make rehabilitation relevant, it says so expressly. G. CONCLUSIONS", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-30", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 74–77", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would dismiss the appeal and answer the certified question as follows. Question: When applying Article 1F (b) of the United Nations Convention relating to the Status of Refugees, is it relevant for the Refugee Protection Division of the Immigration and Refugee Board to consider the fact that the refugee claimant has been rehabilitated since the commission of the crime at issue? Answer: No. “John M. Evans” J.A. “I agree K. Sharlow J.A.” STRATAS J.A. (Concurring Reasons)\n\nI wish to comment on my colleague’s discussion of the standard of review (paragraphs 22-25 of his reasons). In particular, I wish to address the suggestion that the need for uniformity in the interpretation of Article 1F (b) is a factor in favour of correctness review.\n\nWorld-wide uniform interpretations of the provisions in international conventions may be desirable. However, that depends on the nature of the provision being interpreted and the quality and acceptability of the interpretations adopted by foreign jurisdictions. For example, foreign interpretations may not always embody values and principles to which we subscribe. I do not read paragraph 4 of Jayasekara, supra as saying something different on this.\n\nIn particular cases, our courts are well-placed to assess whether their decisions should conform to foreign decisions. But some of our tribunals are equally well-placed to assess that – sometimes even better-placed – armed as they are with specialized understandings, policy appreciation, and expertise. In some cases, reasonableness review, not correctness review, may be warranted.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-31", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "paras 78–80", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dunsmuir, supra, the Supreme Court has developed certain categories of questions which require correctness review. The interpretation of provisions in international conventions is not yet one of them. Nor should it be. International conventions address many subjects, some quite technical and narrow. Some of those subjects can benefit from interpretations and applications by tribunals with specialized understandings, policy appreciation, and expertise. Again, on occasion, reasonableness review, not correctness review, may be warranted.\n\nIn the end, the choice of standard of review makes no practical difference in this case: ● Reasonableness review. The cogent reasons offered by my colleague amply demonstrate that the RPD’s interpretation of Article 1F (b) is well within the range of the acceptable and defensible and, therefore, passes muster under reasonableness review. ● Correctness review. The standard of review was not specifically addressed in Jayasekara, supra, but I agree that the reasoning in it smacks of correctness review. If, as my colleague suggests, the standard of correctness review is to be adopted in this case in accordance with paragraph 62 of Dunsmuir, supra, his reasoning amply demonstrates the correctness of the RPD’s decision.\n\nFor this reason, I agree with the Minister’s submission that we need not determine the standard of review in this case.", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-37663-32", + "doc_type": "caselaw", + "act_code": "2012 FCA 324", + "act_short": "Hernandez Febles", + "act_name": "Hernandez Febles v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Hernandez Febles v. Canada (Citizenship and Immigration), 2012 FCA 324", + "marginal_note": "para 81", + "heading": "Exclusion from refugee protection for a serious non-political crime, Refugee Convention Article 1F(b)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subject to these comments, I concur with my colleague’s reasons. “David Stratas” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-379-11 STYLE OF CAUSE: FEBLES v MCI PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 19, 2012 REASONS FOR JUDGMENT BY: EVANS J.A. CONCURRED IN BY: SHARLOW J.A. CONCURRING REASONS BY: STRATAS J.A. DATED: December 7, 2012 APPEARANCES: Jared Will Peter Shams FOR THE APPELLANT Normand Lemyre FOR THE RESPONDENT SOLICITORS OF RECORD: Jared Will, Lawyer Montreal, Quebec FOR THE APPELLANT William F. Pentney Deputy Attorney General of Canada FOR THE RESPONDENT", + "current_to": "2012-12-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/37663/index.do" + }, + { + "id": "fca-36253-1", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 1–2", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of Strayer J. of the Federal Court (judge) who dismissed the appellant’s application for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (Board). The judge certified the two following questions for analysis by this Court: 1. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? 2. If the answer to question 1 is affirmative, if a person is forced to leave the country where the crime was committed prior to the completion of his sentence, does this have the effect of deeming the sentence to have been served? In application of section 98 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and the exclusion clause in Article 1F(b) of the Convention, the Board found that the appellant was not a Convention refugee or a person in need of protection. In addition, the Board ruled that the appellant was not credible and did not meet the criteria of the Convention. There is no appeal from this second finding of the Board. From that perspective, the appeal is moot.\n\nHowever, a person who, pursuant to section 98 of the IRPA, is excluded as a Convention refugee on the basis of Article 1F(b) of the Convention, cannot obtain refugee protection. This results from the combined effect of paragraphs 95(1)(c) and 112(3)(c) of the IRPA.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-2", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 3–5", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, while that person can still apply to the Minister of Citizenship and Immigration (Minister) for protection if subject to a removal order, he or she cannot obtain permanent resident status. Pursuant to paragraph 114(1)(b) of the IRPA, the Minister’s decision to allow the application for protection merely has the effect of staying the removal order. In view of these consequences on a claimant, I believe that this Court should address the certified questions.\n\nSection 98 of the IRPA and the interpretation to be given to the word “serious” in the terms “serious non-political crime” found in Article 1F(b) of the Convention carry with them an international dimension. As Lord Llyod of Berwick said in T v. Secretary of State for the Home Department, [1996] 2 All ER 865, at p. 891, “in a case concerning an international convention, it is obviously desirable that decisions in different jurisdictions should, so far possible, be kept in line with each other”. For this reason, we requested the parties provide us with additional submissions containing references to the international jurisprudence on this question.\n\nMore specifically, the parties were asked to provide references: a) as to whether the seriousness of a non-political crime within the meaning of Article 1F(b) of the Convention is determined solely by reference to the maximum sentence that can be imposed for the particular crime as provided in the domestic law of the country of refuge; or b) whether, in making the determination, the facts relating to the nature and seriousness of the acts committed may or must be taken into account. The parties were given until November 7, 2008 to complete their submissions.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-3", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before stating the facts, I reproduce the relevant provisions: Convention Article 1. Definition of the term “refugee” F. The provisions of this Convention shall not apply to any person with respect to whom there are serious reasons for considering that: (a) He has committed a crime against peace, a war crime, or a crime against humanity, as defined in the international instruments drawn up to make provision in respect of such crimes; (b) He has committed a serious non-political crime outside the country of refuge prior to his admission to that country as a refugee; (c) He has been guilty of acts contrary to the purposes and principles of the United Nations. Article premier. -- Définition du terme « réfugié » F. Les dispositions de cette Convention ne seront pas applicables aux personnes dont on aura des raisons sérieuses de penser : a) Qu'elles ont commis un crime contre la paix, un crime de guerre ou un rime contre l'humanité, au sens des instruments internationaux élaborés pour prévoir des dispositions relatives à ces crimes; b) Qu'elles ont commis un crime grave de droit commun en dehors du pays d'accueil avant d'y être admises comme réfugiés; c) Qu'elles se sont rendues coupables d'agissements contraires aux buts et aux principes des Nations Unies. [Emphasis added] IRPA PART 1 - IMMIGRATION TO CANADA Division 4 - Inadmissibility Serious criminality 36.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-4", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for (a) having been convicted in Canada of an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years, or of an offence under an Act of Parliament for which a term of imprisonment of more than six months has been imposed; (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. PART 2 - REFUGEE PROTECTION Division 1 - Refugee Protection, Convention Refugees and Persons in Need of Protection Conferral of refugee protection 95. (1) Refugee protection is conferred on a person when (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. … Convention refugee 96.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-5", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or (b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country. Person in need of protection 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. Person in need of protection (2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection. Exclusion — Refugee Convention 98.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-6", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "A person referred to in section E or F of Article 1 of the Refugee Convention is not a Convention refugee or a person in need of protection. … Ineligibility 101. (1) A claim is ineligible to be referred to the Refugee Protection Division if … (f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c). Serious criminality (2) A claim is not ineligible by reason of serious criminality under paragraph (1)(f) unless (a) in the case of inadmissibility by reason of a conviction in Canada, the conviction is for an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years and for which a sentence of at least two years was imposed; or (b) in the case of inadmissibility by reason of a conviction outside Canada, the Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years. … Division 3 - Pre-removal Risk Assessment Protection Application for protection 112. (1) A person in Canada, other than a person referred to in subsection 115(1), may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force or are named in a certificate described in subsection 77(1).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-7", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "… Restriction (3) Refugee protection may not result from an application for protection if the person (a) is determined to be inadmissible on grounds of security, violating human or international rights or organized criminality; (b) is determined to be inadmissible on grounds of serious criminality with respect to a conviction in Canada punished by a term of imprisonment of at least two years or with respect to a conviction outside Canada for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; (c) made a claim to refugee protection that was rejected on the basis of section F of Article 1 of the Refugee Convention; or (d) is named in a certificate referred to in subsection 77(1). Consideration of application 113. Consideration of an application for protection shall be as follows: … (c) in the case of an applicant not described in subsection 112(3), consideration shall be on the basis of sections 96 to 98; (d) in the case of an applicant described in subsection 112(3), consideration shall be on the basis of the factors set out in section 97 and (i) in the case of an applicant for protection who is inadmissible on grounds of serious criminality, whether they are a danger to the public in Canada, or (ii) in the case of any other applicant, whether the application should be refused because of the nature and severity of acts committed by the applicant or because of the danger that the applicant constitutes to the security of Canada. Effect of decision 114.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-8", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A decision to allow the application for protection has (a) in the case of an applicant not described in subsection 112(3), the effect of conferring refugee protection; and (b) in the case of an applicant described in subsection 112(3), the effect of staying the removal order with respect to a country or place in respect of which the applicant was determined to be in need of protection. PARTIE 1 - IMMIGRATION AU CANADA Section 4 - Interdictions de territoire Grande criminalité 36. (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : a) être déclaré coupable au Canada d’une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans ou d’une infraction à une loi fédérale pour laquelle un emprisonnement de plus de six mois est infligé; b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans. PARTIE 2 - PROTECTION DES RÉFUGIÉS Section 1 - Notions d’asile, de réfugié et de personne à protéger Asile 95.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-9", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection, sauf si la personne est visée au paragraphe 112(3). […] Définition de « réfugié » 96. A qualité de réfugié au sens de la Convention – le réfugié – la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques: a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner. Personne à protéger 97.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-10", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée : a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats. Personne à protéger (2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection. Exclusion par application de la Convention sur les réfugiés 98. La personne visée aux sections E ou F de l’article premier de la Convention sur les réfugiés ne peut avoir la qualité de réfugié ni de personne à protéger. […] Irrecevabilité 101.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-11", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La demande est irrecevable dans les cas suivants : […] f) prononcé d’interdiction de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux — exception faite des personnes interdites de territoire au seul titre de l’alinéa 35(1)c) – , grande criminalité ou criminalité organisée. Grande criminalité (2) L’interdiction de territoire pour grande criminalité visée à l’alinéa (1)f) n’emporte irrecevabilité de la demande que si elle a pour objet : a) une déclaration de culpabilité au Canada pour une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans et pour laquelle un emprisonnement d’au moins deux ans a été infligé; b) une déclaration de culpabilité à l’extérieur du Canada, pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans, le ministre estimant que le demandeur constitue un danger pour le public au Canada. […] Section 3 - Examen des risques avant renvoi Protection Demande de protection 112. (1) La personne se trouvant au Canada et qui n’est pas visée au paragraphe 115(1) peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet ou nommée au certificat visé au paragraphe 77(1).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-12", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 6", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] Restriction (3) L’asile ne peut être conféré au demandeur dans les cas suivants : a) il est interdit de territoire pour raison de sécurité ou pour atteinte aux droits humains ou internationaux ou criminalité organisée; b) il est interdit de territoire pour grande criminalité pour déclaration de culpabilité au Canada punie par un emprisonnement d’au moins deux ans ou pour toute déclaration de culpabilité à l’extérieur du Canada pour une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; c) il a été débouté de sa demande d’asile au titre de la section F de l’article premier de la Convention sur les réfugiés; d) il est nommé au certificat visé au paragraphe 77(1). Examen de la demande 113. Il est disposé de la demande comme il suit : […] c) s’agissant du demandeur non visé au paragraphe 112(3), sur la base des articles 96 à 98; d) s’agissant du demandeur visé au paragraphe 112(3), sur la base des éléments mentionnés à l’article 97 et, d’autre part : (i) soit du fait que le demandeur interdit de territoire pour grande criminalité constitue un danger pour le public au Canada, (ii) soit, dans le cas de tout autre demandeur, du fait que la demande devrait être rejetée en raison de la nature et de la gravité de ses actes passés ou du danger qu’il constitue pour la sécurité du Canada. Effet de la décision 114. (1) La décision accordant la demande de protection a pour effet de conférer l’asile au demandeur; toutefois, elle a pour effet, s’agissant de celui visé au paragraphe 112(3), de surseoir, pour le pays ou le lieu en cause, à la mesure de renvoi le visant. [Emphasis added] The facts", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-13", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 7–12", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The facts can be summarized as follows. The appellant, Mr. Ruwan Chandima Jayasekara, is a Sri Lankan citizen of Sinahalese ethnicity. He was allegedly targeted in Sri Lanka by the Tamil Tigers. He arrived in the United States in 1998 and lived there without status until 2004.\n\nIn January 2004, he was arrested in New York State on drug charges and pled guilty to the “criminal sale of the controlled substance opium in the third degree” and to criminal possession of marijuana. In March 2004, he was convicted and sentenced to 29 days in jail and a 5 year probation period.\n\nOne month after completing his jail term, he attended an immigration hearing and was issued a voluntary departure order to leave the United States by October 2004.\n\nOn July 5, 2004, he entered Canada and claimed refugee protection. He did not apply to his probation office to obtain permission to leave the jurisdiction of the United States and a warrant for his arrest as an absconder was issued on July 27, 2004. The Board’s decision\n\nThe Board heard the appellant’s refugee claim on April 12 and September 15, 2006. As previously mentioned, it found that he was excluded from refugee protection under section 98 of the IRPA and Article 1F(b) of the Convention because there were serious reasons for considering that he had committed a serious non-political crime outside of Canada and that he had not completed his sentence as he fled the United States during his probation.\n\nMoreover, it found that, even if the appellant was not excludable under Article 1F(b) of the Convention, he did not meet the criteria for either Convention refugee status or as a person requiring protection. These findings based on credibility are not contested.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-14", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 13–16", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant sought judicial review before the Federal Court only of his exclusion under section 98 of the IRPA and Article 1F(b) of the Convention. The Federal Court decision\n\nThe judge reviewed the Board’s decision on the standard of reasonableness because, at the core of it, the question of the exclusion under section 98 of the IRPA and Article 1F(b) of the Convention was one of mixed fact and law which involved some degree of discretion: see paragraph 10 of the reasons for judgment.\n\nHe was also of the view that it was reasonable for the Board to conclude that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non-political crime outside the country. He found that conclusion to be reasonable because the offence committed by the appellant would carry a maximum sentence of life imprisonment in Canada. At paragraph 11 of the reasons for judgment he wrote: It was perfectly reasonable for the Board to use as a measurement of a “serious” crime the view which Canadian law takes of that offence, not the seriousness of the penalty imposed in the United States.\n\nWith respect to the certified questions, the judge ruled that the appellant had not completed his sentence in the United States as he voluntarily left that country with most of his five years probation unserved.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-15", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 17–18", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, addressing the appellant’s contention that Article 1F(b) of the Convention is inapplicable to persons who have served their sentence abroad before coming to Canada, the judge reviewed the decisions of our Court in Chan v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1180 and Zrig v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 565. He concluded that the Board was still right to have excluded the appellant under Article 1F(b) of the Convention, even if he were deemed to have constructively served his sentence in the United States. The purpose of Article 1F(b) of the Convention\n\nThe purpose of Article 1F(b) of the Convention was considered by our Court in the Chan and Zrig decisions. Counsel for the appellant submits that Chan is still good and applicable law. He argued that Chan established a general principle that a person who has served his sentence should not be excluded under Article 1F(b) of the Convention.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-16", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 19–20", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant relies upon the following statement of Robertson J.A., at paragraph 4 of the reasons for judgment in Chan: Assuming without deciding that the appellant’s conviction qualifies as a serious non-political crime, it is clear to me that Article 1F(b) cannot be invoked in cases where a refugee claimant has been convicted of a crime and served his or her sentence outside Canada prior to his or her arrival in this country. I rest this conclusion on two grounds. First, obiter comments of Justice Bastarache in Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982 (writing for the majority) and Justice La Forest in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, fully support this interpretation of Article 1F(b), as do the writings of academic commentators. Second, any other interpretation is in conflict with the statutory scheme set out in the Immigration Act.\n\nIn that case, our Court had to reconcile the terms of Article 1F(b) of the Convention with then subparagraphs 46.01(1)(e)(i) and 19(1)(c.1)(i) of the former Immigration Act, R.S.C. 1985, c. I-2, as amended (former Act).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-17", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 21", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "These provisions of the former Act read: Access Criteria 46.01 (1) A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the person … (e) has been determined by an adjudicator to be (i) a person described in paragraph 19(1)(c) or subparagraph 19(1)(c.1)(i) and the Minister is of the opinion that the person constitutes a danger to the public in Canada, 19. (1) Inadmissible Persons – No person shall be granted admission who is a member of any of the following classes: … (c.1) persons who there are reasonable grounds to believe (i) have been convicted outside Canada of an offence that, if committed in Canada, would constitute an offence that may be punishable under any Act of Parliament by a maximum term of imprisonment of ten years or more, or … except persons who have satisfied the Minister that they have rehabilitated themselves and that at least five years have elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission as the case may be; Critères de recevabilité 46.01 (1) – La revendication de statut n’est pas receivable par la section du statut si l’intéressé se trouve dans l’une ou l’autre des situations suivantes : […] (e) L’arbitre a décidé, selon le cas : (i) qu’il appartient à l’une des catégories non admissibles visées à l’alinéa 19(1)c) ou au sous-alinéa 19(1)c.1)(i) et, selon le ministre, il constitue un danger pour le public au Canada, 19.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-18", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 21–24", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Personnes non admissibles – Les personnes suivantes appartiennent à une catégorie non admissible : […] c.1) celles dont il y a des motifs raisonnables de croire qu’elles ont, à l’étranger : (i) soit été déclarées coupables d’une infraction qui, si elle était commise au Canada, constituerait une infraction qui pourrait être punissable, aux termes d’une loi fédérale, d’un emprisonnement maximum égal ou supérieur à dix ans, sauf si elles peuvent justifier auprès du ministre de leur réadaptation et du fait qu’au moins cinq ans se sont écoulés depuis l’expiration de toute peine leur ayant été infligée pour l’infraction ou depuis la commission du fait; [Emphasis added]\n\nPursuant to section 46.01, a person who was inadmissible to Canada could not have his or her claim determined by the Refugee Division. In other words, he or she was excluded from a refugee hearing before the Refugee Division.\n\nHowever, subparagraph 19(1)(c.1)(i) created an exception to the inadmissibility to Canada of persons convicted outside of Canada for a crime that could be punishable in Canada by a maximum term of imprisonment of ten (10) years or more.\n\nAs a matter of fact, a person convicted of such crimes could still be eligible for refugee protection and have his or her claim determined by the Refugee Division if the Minister was satisfied that that person had rehabilitated himself or herself and that five years had elapsed since the expiration of the sentence imposed or since the commission of the act or omission.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-19", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 25–27", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In order to give meaning to the rehabilitation provisions of the former Act, Robertson J.A. found in Chan that Article 1F(b) of the Convention could not be given an interpretation which would have resulted in a blanket exclusion of those who had been found guilty of serious crimes as defined in the Act. Such interpretation would have deprived a claimant of the protection offered by the exception to the inadmissibility rule. I should add, it would have also divested the Minister of his discretionary power under paragraph 19(1)(c.1) of that Act.\n\nIn my respectful view, the decision in Chan stands for the proposition that, under the existing law at the time, which, as we will see, has now been modified by the IRPA, a claimant who was convicted of a serious non-political crime and who served his sentence was not necessarily excluded from a refugee hearing or rendered ineligible to apply for the refugee protection afforded by the Convention. He or she remained entitled to have their refugee claim determined by the Refugee Division if the Minister concluded that the claimant was rehabilitated and was not a danger to the public.\n\nWhile the decision in Chan afforded some protection to a claimant and safeguarded the Minister’s discretion, it did not then, nor does it now, in my respectful view, stand for the proposition that, whatever the circumstances, a country cannot exclude an applicant who was convicted and served his sentence.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-20", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 28", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The purpose stated in Chan is neither the only nor, as contended by the appellant, necessarily the primary purpose sought by the exclusion contained in Article 1F(b) of the Convention. This is made clear by the subsequent decision of our Court in Zrig. In this respect, our colleague Décary J. wrote at paragraphs 118 and 119 of that decision: Purposes of Article 1F of the Convention in general, and Article 1F(b) in particular [118] My reading of precedent, academic commentary and of course, though it has often been neglected, the actual wording of Article 1F of the Convention, leads me to conclude that the purpose of this section is to reconcile various objectives which I would summarize as follows: ensuring that the perpetrators of international crimes or acts contrary to certain international standards will be unable to claim the right of asylum; ensuring that the perpetrators of ordinary crimes committed for fundamentally political purposes can find refuge in a foreign country; ensuring that the right of asylum is not used by the perpetrators of serious ordinary crimes in order to escape the ordinary course of local justice; and ensuring that the country of refuge can protect its own people by closing its borders to criminals whom it regards as undesirable because of the seriousness of the ordinary crimes which it suspects such criminals of having committed. It is this fourth purpose which is really at issue in this case. [119] These purposes are complementary. The first indicates that the international community did not wish persons responsible for persecution to profit from a convention designed to protect the victims of their crimes.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-21", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 28–29", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The second indicates that the signatories of the Convention accepted the fundamental rule of international law that the perpetrator of a political crime, even one of extreme seriousness, is entitled to elude the authorities of the State in which he committed his crime, the premise being that such a person would not be tried fairly in that State and would be persecuted. The third indicates that the signatories did not wish the right of asylum to be transformed into a guarantee of impunity for ordinary criminals whose real fear was not being persecuted, but being tried, by the countries they were seeking to escape. The fourth indicates that while the signatories were prepared to sacrifice their sovereignty, even their security, in the case of the perpetrators of political crimes, they wished on the contrary to preserve them for reasons of security and social peace in the case of the perpetrators of serious ordinary crimes. This fourth purpose also indicates that the signatories wanted to ensure that the Convention would be accepted by the people of the country of refuge, who might be in danger of having to live with especially dangerous individuals under the cover of a right of asylum. [Emphasis added]\n\nI agree with this well documented statement of our colleague Décary J.A.: see also on the existence and scope of this fourth purpose Minister for Immigration and Multicultural Affairs v. Singh, [2002] HCA 7, at paragraphs 94-95 (High Court of Australia); Tenzin Dhayakpa v. The Minister of Immigration and Ethnic Affairs, [1995] FCA 1653 (Fed. Ct. Australia) at paragraphs 27 to 29; Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, [1998] FCA 1314 (Fed. Ct. Australia). The purposes are complementary and, in my view, there is no ranking among them.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-22", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 30–34", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Some elements of the reasoning in Chan are still relevant under the IRPA because of the ineligibility rule applicable to refugee claimants under Part 2 of the IRPA, such as ineligibility for serious criminality: see subsections 101(1) and (2) of the IRPA.\n\nThere is, however, a notable difference between the IRPA and the former Act. Under paragraph 46.01(1)(e) and subparagraph 19(1)(c.1)(i) of the former Act, a claimant was ineligible for a refugee hearing if he was inadmissible to Canada on account of serious criminality unless, as previously stated, the Minister was satisfied that the claimant had rehabilitated himself or herself and five years had elapsed since the expiration of any sentence imposed for the offence or since the commission of the act or omission (emphasis added).\n\nUnder the IRPA, the rule as to ineligibility has changed. By virtue of subsections 101(2), a claimant, who is inadmissible by reason of serious criminality, now remains eligible for a refugee hearing unless the “Minister is of the opinion that the person is a danger to the public in Canada and the conviction is for an offence that, if committed in Canada, would constitute an offence under an Act of Parliament that is punishable by a maximum term of imprisonment of at least 10 years” (emphasis added).\n\nIn other words, under the former Act, there was a rule of ineligibility for a refugee hearing if a claimant was inadmissible on account of serious criminality. That rule operated unless the exception applied. Under the IRPA the rule is reversed. A claimant remains eligible unless the exception applies.\n\nThe concept of “sentence served” remains relevant to the issue of admissibility to Canada by reason of paragraph 36(3)(c) of the IRPA which deals with rehabilitation.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-23", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 35–37", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "This brings me now to the determination of the first certified question and the role that domestic law plays or should play in the interpretation of the exclusion clause contained in Article 1F(b) of the Convention. Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention\n\nCentral to the exclusion clause of Article 1F(b) of the Convention is the commission of a “serious” non-political crime. What does “serious” mean in that clause? What are the criteria for determining whether a claimant’s crime is serious within the meaning of Article 1F(b) of the Convention? What standards are applicable to that determination? International or local standards or both? Was the crime in the present instance serious enough to justify the application of the exclusion clause? These questions must now be addressed in the context of Article 1F(b) of the Convention. a) The standards applicable to the determination of the gravity of a crime\n\nThe UNHCR-issued Guidelines on International Protection (The UN Refugee Agency), at paragraph 38, suggest that the gravity of a crime be “judged against international standards, not simply by its characterization in the host State or country of origin”. This is, of course, to avoid the profound disparities which may exist between countries with respect to the same behaviour. As Branson J. wrote in Igor Ovcharuk v. Minister for Immigration and Multicultural Affairs, supra, at page 15 of his reasons for judgment, “one needs only to bring to mind regimes under which conduct such as peaceful political dissent, the possession of alcohol and the “immodest” dress of women is regarded as seriously criminal”.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-24", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 38–39", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "The UNHCR Guidelines propose, at paragraph 39, the following factors as relevant in determining the seriousness of a crime for the purpose of Article 1F(b) of the Convention: - the nature of the act; - the actual harm inflicted; - the form of procedure used to prosecute the crime; - the nature of the penalty for such a crime; and - whether most jurisdictions would consider the act in question as a serious crime. The Guidelines go on to give as examples of serious crimes the crimes of murder, rape, arson and armed robbery. They also refer to other offences which could be deemed to be serious “if they are accompanied by the use of deadly weapons, involve serious injury to a person or there is evidence of serious habitual criminal conduct and other similar factors”: ibidem, at paragraph 40. Reference here is clearly made to circumstances surrounding the commission of the crime which, the Guidelines submit, should be taken into account in assessing the seriousness of the crime.\n\nThe UNHCR Guidelines are not binding. Nor is the UN Handbook on Procedures and Criteria for Determining Refugee Status (under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees), Geneva, January 1988, although the Handbook can be relied upon by the courts for guidance: see Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, at pages 713-714; Tenzin Dhayakpa, supra, at paragraph 27; Igor Ovcharuk, supra, at page 8; INS v. Aguirre-Aguirre, U.S. 1999, 1, at pages 10 and 11 (U.S. Supreme Court). I also agree that the Handbook cannot override the functions of the Court in determining the words of the Convention: see the reasons for judgment of Henry J. in S. v. Refugee Appeals Authority, [1998] 2 NZLR 291, at paragraph 20 (N.Z. C.A.).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-25", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 40–41", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the purpose of determining whether a person is ineligible to have his or her refugee claim referred to the Refugee Protection Division on the basis of “serious criminality”, paragraph 101(2)(b) of the IRPA requires a conviction outside Canada for an offence which, if committed in Canada would be an offence in Canada punishable by a maximum term of at least 10 years. This is a strong indication from Parliament that Canada, as a receiving state, considers crimes for which this kind of penalty is prescribed as serious crimes. In the case of a crime committed outside Canada, paragraph 101(2)(b) makes the length of the sentence actually imposed irrelevant. This is to be contrasted with paragraph 101(2)(a) which deals with inadmissibility by reason of a conviction in Canada. In this last instance, Parliament has seen fit to require that the offence be punishable by a maximum term of imprisonment of at least 10 years and that a sentence of at least two years has been imposed (emphasis added).\n\nI agree with counsel for the respondent that, if under Article 1F(b) of the Convention the length or completion of a sentence imposed is to be considered, it should not be considered in isolation. There are many reasons why a lenient sentence may actually be imposed even for a serious crime. That sentence, however, would not diminish the seriousness of the crime committed. On the other hand, a person may be subjected in some countries to substantial prison terms for behaviour that is not considered criminal in Canada.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-26", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 42–43", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further, in many countries, sentencing for criminal offences takes into account factors other than the seriousness of the crime. For example, a player in a prostitution ring may, out of self-interest, assist the prosecuting authorities in the dismantling of the ring in return for a light sentence. Or an offender may seek and obtain a more lenient sentence in exchange for a guilty plea that relieves the victim of the ordeal of testifying about a traumatic sexual assault. Costly and time-consuming mega-trials involving numerous accused can be avoided in the public interest through the negotiation of guilty pleas and lighter sentences. The negotiations relating to sentences may involve undertakings of confidentiality, protection of persons and solicitor-client privileges. Access to the confidential, secured and privileged information may not be permitted, so that a look at the lenient sentence in isolation by a reviewing authority would provide a distorted picture of the seriousness of the crime of which the offender was convicted.\n\nWhile regard should be had to international standards, the perspective of the receiving state or nation cannot be ignored in determining the seriousness of the crime. After all, as previously alluded to, the protection conferred by Article 1F(b) of the Convention is given to the receiving state or nation. The UNHCR Guidelines acknowledges as much: see paragraph 36 above.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-27", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 44–45", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I believe there is a consensus among the courts that the interpretation of the exclusion clause in Article 1F(b) of the Convention, as regards the seriousness of a crime, requires an evaluation of the elements of the crime, the mode of prosecution, the penalty prescribed, the facts and the mitigating and aggravating circumstances underlying the conviction: see S v. Refugee Status Appeals Authority, (N.Z. C.A.), supra; S and Others v. Secretary of State for the Home Department, [2006] EWCA Civ 1157 (Royal Courts of Justice, England); Miguel-Miguel v. Gonzales, no. 05-15900, (U.S. Ct of Appeal, 9th circuit), August 29, 2007, at pages 10856 and 10858. In other words, whatever presumption of seriousness may attach to a crime internationally or under the legislation of the receiving state, that presumption may be rebutted by reference to the above factors. There is no balancing, however, with factors extraneous to the facts and circumstances underlying the conviction such as, for example, the risk of persecution in the state of origin: see Xie v. Canada, supra, at paragraph 38; INS v. Aguirre-Aguirre, supra, at page 11; T v. Home Secretary (1995), 1 WLR 545, at pages 554-555 (English C.A.); Dhayakpa v. The Minister of Immigration and Ethnic Affairs, supra, at paragraph 24.\n\nFor instance, a constraint short of the criminal law defence of duress may be a relevant mitigating factor in assessing the seriousness of the crime committed. The harm caused to the victim or society, the use of a weapon, the fact that the crime is committed by an organized criminal group, etc. would also be relevant factors to be considered.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-28", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 46–48", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I should add for the sake of clarity that Canada, like Great Britain and the United States, has a fair number of hybrid offences, that is to say offences which, depending on the mitigating or aggravating circumstances surrounding their commission, can be prosecuted either summarily or more severely as an indictable offence. In countries where such a choice is possible, the choice of the mode of prosecution is relevant to the assessment of the seriousness of a crime if there is a substantial difference between the penalty prescribed for a summary conviction offence and that provided for an indictable offence. b) Whether the crime in the present instance is serious and justified the application of the exclusion clause\n\nIt should be recalled that the appellant was convicted in the United States for trafficking a hard drug, namely opium.\n\nIt is not disputed that trafficking in narcotics and psychotropic substances can entail both human and economic consequences for society. As the evidence reveals, drug trafficking is treated as a serious crime across the international spectrum. In their book on The Refugee in International Law, 3rd ed., Oxford University Press, 2007, at page 179, G.S. Goodwin-Gill and J. McAdam mention that the UNHCR, with a view to promoting consistent decisions “proposed that, in the absence of any political factors, a presumption of serious crime might be considered as raised by evidence of commission of any of the following offences: homicide, rape, child molesting, wounding, arson, drugs traffic, and armed robbery” (emphasis added).", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-29", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 49–50", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In accordance with the three United Nations Drug Conventions, i.e. the 1961 Single Convention on Narcotic Drugs (amended by the Protocol of 25 March 1972), 976 U.N.T.S. 105; the 1971 Convention Against Psychotropic Substances, 1019 U.N.T.S. 175; and the 1988 Convention Against the Illicit Traffic in Narcotic Drugs and Psychotropic Substances, E/Conf. 82/15, signatory nations are required to coordinate preventive and repressive action against drug trafficking, including the imposition of penal provisions as necessary. The choice of penal provisions remains at the discretion of the Member State and may exceed those provided by the Conventions if the Member States deem them desirable or necessary for the protection of public health and welfare.\n\nAs reflected by the penal provisions enacted, most signatory states define and treat drug trafficking as a serious crime. In contrast to mere possession, drug trafficking is usually punishable by a period of incarceration. In this country, the sentence imposed for a drug trafficking offence carries a maximum time of 18 months for a summary conviction and up to a maximum of life imprisonment for an indictable offence depending on the substance trafficked: see the Controlled Drugs and Substances Act, S.C. 1996, c. 19, s. 5.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-30", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "para 51", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other countries, the punishment is equal to or greater than ours and can include both incarceration and the imposition of fines. The United States also provides for a range of sentences depending on the substance trafficked, whether the consequence of trafficking included serious injury or death, and whether there were prior convictions. Overall, sentences can range from a minimum of one year to a life sentence and fines can be imposed from $100,000 to $20,000,000, depending on, as per the wording of the article, whether the offender is an individual or other than an individual: see 21 U.S.C. §841. In a recent case comparable to ours where the accused pleaded guilty to selling .26 grams of rock cocaine for $20, the US Court of Appeal for the 9th circuit upheld, in August 2007, the presumption that the accused had committed a particularly serious crime. The accused had been sentenced to the time served (36 days), a fine of $200 and a five-year probation period: see Miguel-Miguel v. Gonzales, supra.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-31", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 52–53", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "Less severe, but similar punishment is legislated in England, Australia, New Zealand and France. Drug trafficking in the United Kingdom can lead to a maximum sentence of 3 to 12 months for summary conviction offences or a 400 to 2,500 pound fine or both. For indictable offences, the penalty is increased, ranging from 5 years to life imprisonment or a fine or both: see the Misuse of Drugs Act, 1971 (U.K.), 1971, c. 38, s. 4 and Schedule 4. Similarly, Australia permits a ten-year period of imprisonment or 2,000 penalty units or both: see Criminal Code Act, 1995 (Cth.), s. 302.4(1). New Zealand sets a range for indictable trafficking offences of a maximum of 8 years to life imprisonment depending on the substance and up to one year imprisonment or a fine of up to $1,000 for summary conviction offences: see Misuse of Drugs Act, 1975 (N.Z.), 1975/116, s. 6. Finally, France allows for 10 years of imprisonment and fines of 7.5 million euros when the trafficked drug is for resale as opposed to individual consumption: see the French Code Pénal, sections 222-237.\n\nIn this country, opium is classified in Schedule 1 and, according to paragraph 5(3)(a) of the Controlled Drugs and Substances Act, supra, a person who sells that substance is liable to imprisonment for life. There is no doubt that Parliament considers the trafficking of opium as a serious crime.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-32", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 54–55", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the United States, the behaviour of the appellant was classified a class B felony. The appellant, although a first offender, received a sentence of 29 days in jail and a five year probation period. A probation order, especially one of five years, is not necessarily a light sentence as it entails restrictions which can be severe on one’s liberty as well as conditions leading to penal consequences in case of breaches: see R. v. B. (M.), [1987] O.J. No. 726 (Ont. C.A.).\n\nIn determining whether the appellant had been convicted of a serious crime, the Board looked at: a) the gravity of the crimes (trafficking in opium and criminal possession of marijuana) under New York legislation which, even for a first offender, resulted in a jail term as well as a five year probation period; b) the sentence imposed by the New York court; c) the facts underlying the conviction, namely the nature of the substance trafficked and possessed, a traffic of opium in three parts, the quantity of drugs possessed and trafficked; d) the finding of this Court in Chan that a crime is a serious non political crime if a maximum sentence of ten years or more could have been imposed if the crime had been committed in Canada; e) the objective gravity of a crime of trafficking in opium in Canada which carries a possible penalty of life imprisonment; and f) the fact that the appellant violated his probation order by failing to report three times to his probation officer and eventually absconded.", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-36253-33", + "doc_type": "caselaw", + "act_code": "2008 FCA 404", + "act_short": "Jayasekara", + "act_name": "Jayasekara v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Jayasekara v. Canada (Citizenship and Immigration), 2008 FCA 404", + "marginal_note": "paras 56–59", + "heading": "The test for a serious crime under Article 1F(b) exclusion from refugee protection", + "part": "Federal Court of Appeal", + "division": "", + "text": "I believe that the judge committed no error when he concluded that it was reasonable for the Board to conclude on these facts that the appellant’s conviction in the United States gave it a serious reason to believe that he had committed a serious non political crime outside the country. c) The answer to the first certified question\n\nThe answer to the following question: Does serving a sentence for a serious crime prior to coming to Canada allow one to avoid the application of Article 1F(b) of the Convention relating to the Status of Refugees (Convention)? is no.\n\nIn view of the conclusion that I have reached on the first certified question, it is not necessary to answer the second question. Conclusion\n\nFor these reasons, I would dismiss the appeal. I am indebted to both counsel for their assistance in resolving the issues before us. “Gilles Létourneau” J.A. “I agree Karen Sharlow J.A.” “I agree J.D. Denis Pelletier J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-140-08 STYLE OF CAUSE: RUWAN CHANDIMA JAYASEKARA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 14, 2008 REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A. CONCURRED IN BY: SHARLOW J.A. PELLETIER J.A. DATED: December 17, 2008 APPEARANCES: Michael Korman FOR THE APPELLANT Lisa Hutt FOR THE RESPONDENT SOLICITORS OF RECORD: Otis & Korman Toronto, Ontario FOR THE APPELLANT John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT", + "current_to": "2008-12-17", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36253/index.do" + }, + { + "id": "fca-35786-1", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 1–3", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a judgment of Justice Mosley (2006 FC 1385). He dismissed the appellants’ application for judicial review of the decision of a pre removal risk assessment officer, who rejected their application for protection under subsection 112(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “IRPA”). An application under subsection 112(1) of the IRPA is referred to as a “pre removal risk assessment application” or a “PRRA application”.\n\nThe principal issue in this appeal is the interpretation of paragraph 113(a) of the IRPA. Paragraph 113(a) deals with the circumstances in which a failed refugee claimant who makes a PRRA application may present evidence to the PRRA officer that was not before the Refugee Protection Division (“RPD”) of the Immigration and Refugee Board.\n\nJustice Mosley summarized, at paragraphs 10 through 12 of his reasons, his conclusions as to the standard of review applicable to a decision of a PRRA officer. Neither party suggested that he erred in his statement of the applicable standard of review, or that he failed to apply the appropriate standard of review. As that issue was not debated, I accept for the purposes of this appeal that the standard of review for questions of law is correctness, for questions of fact is patent unreasonableness, and for questions of mixed fact and law is reasonableness. In my view, nothing in this appeal turns on the standard of review.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-2", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 4", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Syed Masood Raza, his wife and their two children are citizens of Pakistan and members of the Shia minority in that country. Mr. Raza suffered attacks in 1994 at the hands of Sipah-e-Sahaba Pakistan extremists because of Mr. Raza’s participation in the religious and business affairs of the Shia community. He reported the attacks to the police, to no avail. Mr. Raza left Pakistan on October 3, 1994 and his family left the following December. They lived in Texas without status until 2003, when they came to Canada. Mr. Raza and his family sought refugee protection under the IRPA on the basis that he had been attacked because of his religious faith and that adequate state protection was not available.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-3", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The provisions of IRPA describing the conferral of refugee protection are sections 95, 96 and 97, which read in relevant part as follows (provisions referring to criminality and national security, which are not in issue in this case, have been omitted): 95. (1) Refugee protection is conferred on a person when 95. (1) L’asile est la protection conférée à toute personne dès lors que, selon le cas : (a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; a) sur constat qu’elle est, à la suite d’une demande de visa, un réfugié ou une personne en situation semblable, elle devient soit un résident permanent au titre du visa, soit un résident temporaire au titre d’un permis de séjour délivré en vue de sa protection; (b) the Board determines the person to be a Convention refugee or a person in need of protection; or (c) […] the Minister allows an application for protection. b) la Commission lui reconnaît la qualité de réfugié ou celle de personne à protéger; c) le ministre accorde la demande de protection […]. (2) A protected person is a person on whom refugee protection is conferred under subsection (1), […] . (2) Est appelée personne protégée la personne à qui l’asile est conféré […] . 96. A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion, 96.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-4", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 5", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "A qualité de réfugié au sens de la Convention—le réfugié—la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques : (a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; […] . a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays; […] . 97. (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality […] would subject them personally 97. (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité […] exposée : (a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture; (b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant : (i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country, (i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays, (ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country, (ii) elle y est exposée en tout lieu de ce pays", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-5", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 5–6", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas, (iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and (iv) the risk is not caused by the inability of that country to provide adequate health or medical care. (iii) la menace ou le risque ne résulte pas de sanctions légitimes—sauf celles infligées au mépris des normes internationales—et inhérents à celles-ci ou occasionnés par elles, (iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.\n\nThe claims of Mr. Raza and his family for refugee protection were rejected by the RPD. The RPD did not doubt Mr. Raza’s account of the attacks he suffered. However, the RPD concluded that conditions in Pakistan had changed since his departure, and that adequate state protection was available as of the date of his application for refugee protection. Leave to seek judicial review of that decision was dismissed by the Federal Court on May 5, 2005.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-6", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 7–9", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Once the leave application was dismissed, there was no procedure available to Mr. Raza and his family to challenge the decision of the RPD to reject their claim for refugee protection on the basis of a finding of adequate state protection. There is no statutory right of appeal. Subsection 55(1) of the Refugee Protection Division Rules (SOR/2002-228) provides for a refugee protection claim to be reopened after it has been decided, but the Federal Court has held that this applies only if the application to reopen is based on an allegation that there was a failure to observe a principle of natural justice (see, for example, Ali v. Canada (Minister of Citizenship and Immigration), 2004 FC 1153, Lakhani v. Canada (Minister of Citizenship and Immigration), 2006 FC 612).\n\nAfter the RPD rejected the claim of Mr. Raza and his family for refugee protection, they became the subjects of a removal order. Prior to their removal date, they made a PRRA application under subsection 112(1) of the IRPA, as they were entitled to do. The removal order was stayed pending the determination of the PRRA application (section 232 of the Immigration Regulations, SOR/2002-227).\n\nSubsection 112(1) reads in relevant part as follows: 112. (1) A person in Canada […] may, in accordance with the regulations, apply to the Minister for protection if they are subject to a removal order that is in force […] 112. (1) La personne se trouvant au Canada […] peut, conformément aux règlements, demander la protection au ministre si elle est visée par une mesure de renvoi ayant pris effet […]", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-7", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 10–11", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "The purpose of section 112 of the IRPA is not disputed. It is explained as follows in the Regulatory Impact Analysis Statement, Canada Gazette, Part II, Vol. 136, Extra (June 14, 2002), at page 274: The policy basis for assessing risk prior to removal is found in Canada’s domestic and international commitments to the principle of non-refoulement. This principle holds that persons should not be removed from Canada to a country where they would be at risk of persecution, torture, risk to life or risk of cruel and unusual treatment or punishment. Such commitments require that risk be reviewed prior to removal. La justification, au niveau des politiques, de l’examen des risques avant renvoi se trouve dans les engagements nationaux et internationaux du Canada en faveur du principe de nonrefoulement. En vertu de ce principe, les demandeurs ne peuvent être renvoyés du Canada dans un pays où ils risqueraient d’être persécutés, torturés, tués ou soumis à des traitements ou peines cruels ou inusités. Ces engagements exigent que les risques soient examinés avant le renvoi.\n\nAssuming there are no issues of criminality or national security, an application under subsection 112(1) is allowed if, at the time of the application, the applicant meets the definition of “Convention refugee” in section 96 of the IRPA or the definition of “person in need of protection” in section 97 of the IRPA (paragraph 113(c) of the IRPA). The result of a successful PRRA application is to confer refugee protection on the applicant (subsection 114(1) of the IRPA).", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-8", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 12", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "A PRRA application by a failed refugee claimant is not an appeal or reconsideration of the decision of the RPD to reject a claim for refugee protection. Nevertheless, it may require consideration of some or all of the same factual and legal issues as a claim for refugee protection. In such cases there is an obvious risk of wasteful and potentially abusive relitigation. The IRPA mitigates that risk by limiting the evidence that may be presented to the PRRA officer. The limitation is found in paragraph 113(a) of the IRPA, which reads as follows: 113. Consideration of an application for protection shall be as follows: 113. Il est disposé de la demande comme il suit : (a) an applicant whose claim to refugee protection has been rejected may present only new evidence that arose after the rejection or was not reasonably available, or that the applicant could not reasonably have been expected in the circumstances to have presented, at the time of the rejection; [… ] . a) le demandeur d’asile débouté ne peut présenter que des éléments de preuve survenus depuis le rejet ou qui n’étaient alors pas normalement accessibles ou, s’ils l’étaient, qu’il n’était pas raisonnable, dans les circonstances, de s’attendre à ce qu’il les ait présentés au moment du rejet; […] .", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-9", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "para 13", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-10", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 13–16", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material).\n\nThe first four questions, relating to credibility, relevance, newness and materiality, are necessarily implied from the purpose of paragraph 113(a) within the statutory scheme of the IRPA relating to refugee claims and pre removal risk assessments. The remaining questions are asked expressly by paragraph 113(a).\n\nI do not suggest that the questions listed above must be asked in any particular order, or that in every case the PRRA officer must ask each question. What is important is that the PRRA officer must consider all evidence that is presented, unless it is excluded on one of the grounds stated in paragraph [13] above.\n\nOne of the arguments considered by Justice Mosley in this case is whether a document that came into existence after the RPD hearing is, for that reason alone, “new evidence”. He concluded that the newness of documentary evidence cannot be tested solely by the date on which the document was created. I agree. What is important is the event or circumstance sought to be proved by the documentary evidence.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-11", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 17–19", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Counsel for Mr. Raza and his family argued that the evidence sought to be presented in support of a PRRA application cannot be rejected solely on the basis that it “addresses the same risk issue” considered by the RPD. I agree. However, a PRRA officer may properly reject such evidence if it cannot prove that the relevant facts as of the date of the PRRA application are materially different from the facts as found by the RPD.\n\nIn this case, Mr. Raza and his family submitted a number of documents in support of their PRRA application. All of the documents were created after the rejection of their claim for refugee protection. The PRRA officer concluded that the information in the documents was essentially a repetition of the same information that was before the RPD. In my view, that conclusion was reasonable. The documents are not capable of establishing that state protection in Pakistan, which had been found by the RPD to be adequate, was no longer adequate as of the date of the PRRA application. Therefore, the proposed new evidence fails at the fourth question listed above.\n\nJustice Mosley found that the PRRA officer’s assessment of the documents was reasonable and was not based on an error of law. I agree. For that reason, I would dismiss this appeal.", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-35786-12", + "doc_type": "caselaw", + "act_code": "2007 FCA 385", + "act_short": "Raza", + "act_name": "Raza v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Raza v. Canada (Citizenship and Immigration), 2007 FCA 385", + "marginal_note": "paras 20–21", + "heading": "Pre-removal risk assessment; the test for new evidence under IRPA s. 113(a)", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Mosley certified the following questions: 1. Is “new evidence” for the purposes of s. 113(a) of the IRPA limited to evidence that post-dates and is “substantially different” from the evidence that was before the Refugee Protection Division (RPD)? 2. Does the standard for the reception of “new evidence” under s. 113(a) of the IRPA require the PRRA officer to accept any evidence created after the RPD determination, even where that evidence was reasonably available to the applicant or he/she could reasonably have been expected to present it at the hearing.\n\nThese questions do not lend themselves to simple yes or no answers. I would answer them by referring to the questions listed in paragraph 13 of these reasons. “K. Sharlow” J.A. “I agree A.M. Linden J.A.” “I agree C. Michael Ryer J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-11-07 APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE MOSLEY DATED DECEMBER 7, 2006 IN FILE NO. IMM-7269-05 STYLE OF CAUSE: Syed Masood Raza et al v. MCI et al PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: November 29, 2007 REASONS FOR JUDGMENT BY: SHARLOW J.A. CONCURRED IN BY: LINDEN J.A. RYER J.A. DATED: December 6, 2007 APPEARANCES: Mr. Ronald Poulton FOR THE APPELLANTS Mr. Greg George Mr. Bernard Assan FOR THE RESPONDENTS SOLICITORS OF RECORD: Mamann & Associates Toronto, Ontario John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE APPELLANTS FOR THE RESPONDENTS Toronto, Ontario", + "current_to": "2007-12-06", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35786/index.do" + }, + { + "id": "fca-99694-1", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 1–4", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from the judgment of Gleason J. (the judge) of the Federal Court dismissing Mr. Najafi’s application for judicial review of the decision of the Immigration Division of the Immigration and Refugee Board (the Division) that found him inadmissible pursuant to paragraphs 34(1)(b) and (f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). In its decision, the Division found that there were reasonable grounds to believe that Mr. Najafi was or had been a member of the Kurdish Democratic Party of Iran (KDPI) and that the KDPI had engaged in or instigated the subversion by force of the Iranian government.\n\nThe judge certified the following question under subsection 74(d) of the IRPA: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nIn this appeal, Mr. Najafi also argues, as he did before the Division and the judge, that paragraph 34(1)(f) of the IRPA has to be construed and read down to avoid a violation of his freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms (the Charter)).\n\nFor the reasons that follow, I propose that this appeal be dismissed.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-2", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 5–7", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Najafi is a citizen of Iran of Kurdish ethnicity. He arrived in Canada in 1999 and made a refugee claim that was accepted. He thus has refugee status. However, he does not have permanent resident status in Canada. Indeed, on March 5, 2010, a report under subsection 44(1) of the IRPA was issued regarding Mr. Najafi. On March 2, 2011, this report was referred to the Division in order to have Mr. Najafi declared inadmissible due to his involvement with the KDPI.\n\nThe Minister of Public Safety and Emergency Preparedness (the Minister) has never alleged that Mr. Najafi was personally involved in any act of violence, including an act to subvert the government by force. The issues before the Division were whether Mr. Najafi had been a member of the KDPI and whether such organization falls within the scope of paragraphs 34(1)(f) and (b) of the IRPA.\n\nDuring the inadmissibility proceedings, Mr. Najafi, in addition to his testimony, provided evidence from a senior member of the KDPI in Canada, from a journalist well versed in the activities of the KDPI, and from two international law experts on the legality of the use of force in international law in the context of an oppressed people seeking self-determination.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-3", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 8–10", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, the Division concluded that there were reasonable grounds to believe that Mr. Najafi was a de facto member of the KDPI within the broad meaning of the term “member” in paragraph 34(1)(f) of the IRPA. Although this conclusion is not being challenged on appeal, I note that the Division relied on Mr. Najafi’s association with the KDPI both in Iran and subsequently in Canada. Mr. Najafi relies on this conclusion to argue that subsection 2(d) of the Charter must be considered in construing this provision. Had the Division based its findings solely on his participation in Iran, the Charter would not have applied.\n\nWith respect to the KDPI, the Division stated that there is evidence (i) that the KDPI is an international organization with many chapters in various countries including Canada, (ii) that membership in the KDPI in Canada would automatically make a person a member of the KDPI in Iran too, and (iii) that applicants for KDPI party membership in Canada must be approved by the KDPI in Kurdistan (paragraph 24 of the decision).\n\nThe Division rejected the argument that the KDPI had two rival factions or one separate political organization distinct from the military wing. The Division found that in fact the KDPI operated under a unified common structure comprised of sections that are complementary, but functionally distinct, and that the activities of its military wing may be imputed to the organization as a whole and to each member of the organization for the purpose of an inquiry under paragraph 34(1)(f) (paragraph 15 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-4", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 11–13", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, the Division reviewed the concept of “subversion by force of any government”. It noted that the word “subversion” is not defined in the IRPA, reviewed the jurisprudence of this Court and of the Federal Court, and considered definitions from dictionaries such as Black’s Law Dictionary, 6th edition (paragraphs 27 to 31 of the decision).\n\nThe Division then expressed the view that “subversion by force of a government” may be distinguished by its specific objective from the broader concept of use of force against the state. It specifically involves using force with the goal of overthrowing the government, either in some part of its territory or in the entire country. The Division was also satisfied that the words “any government” include even a despotic regime, and that the government’s actions, however oppressive, are not relevant to the analysis (paragraph 32 of the decision).\n\nIn view of the above, the Division concluded at paragraph 32 of its decision that: While there may be other possible interpretations, I find that the jurisprudence indicates that using force with the goal of overthrowing any government amounts to subversion by force. In making this decision, the Division rejected Mr. Najafi’s argument that “subversion by force of any government” must necessarily refer to the unlawful use of force and that legitimate uses of force in international conflicts such as those set out in the affidavits of his legal experts should not fall within the definition. It found that analysis of the legitimacy or legality of the armed struggle is not called for in the context of an inadmissibility hearing – although it may be very relevant to an application for a ministerial exemption pursuant to subsection 34(2) (now 42.1(1) of the IRPA) (paragraph 33 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-5", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 14–15", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thirdly, the Division proceeded to determine whether the KDPI’s objective had been to overthrow the government of Iran. It found that the KDPI advocated and participated in the overthrow of the Shah of Iran and that, later on, the KDPI’s long-term objective of establishing a democratic socialist society within a federal Iran included the replacement of what the KDPI described as the “theocratic dictatorship” of the “reactionary and bloodthirsty regime of [the] Islamic Republic” with a new democratic federal system: the Federal Republic of Iran (paragraphs 34 to 36 of the decision).\n\nThe Division then reviewed the KDPI’s methods. After acknowledging that there was considerable evidence that the KDPI’s use of force had largely been in self-defence, it found that the KDPI nonetheless deliberately used armed force to try to overthrow the Iranian government and that this was part of its strategic repertoire. This was certainly true in the 1967-1968 period, during which it was engaged in an unsuccessful armed uprising against the Shah of Iran. In 1973, the KDPI “committed itself formally to armed struggle”. The Division then noted that the KDPI’s armed conflict with the Iranian government was at its height in 1982 and 1983, during which it was driven out of population centres and forced into guerrilla warfare in the mountains, although it temporarily recaptured the town of Bukan in September 1983 (paragraphs 37 to 41 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-6", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 16–18", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division further noted that from the mid 1980s to early 1990s KDPI forces were in control of the countryside with support from the Kurdish population while the Iranian forces held the cities. It found that the KDPI did attack Iranian forces within areas under KDPI control prior to the KDPI mid-1990s withdrawal of its armed forces from the Iranian territory (paragraphs 41 to 42 of the decision).\n\nThe Division concluded that overall the evidence provided by both parties was sufficient to meet the low threshold of establishing reasonable grounds to believe that the KDPI has engaged in or instigated the subversion by force of a government (paragraph 43 of the decision).\n\nThe Division rejected Mr. Najafi’s argument that the KDPI had expressly given up any form of violence, stating that the KDPI still maintains a military wing that trains in war tactics. It also held that after the alleged renunciation of violence, there was some evidence of continued KDPI guerrilla attacks within Iran. Thus, even if one were to accept that there was an exception where “a violent organization has transformed itself into a legitimate political party and has expressly given up any form of violence”, this exception would not apply to the KDPI in this case (paragraphs 11 to 13 of the decision).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-7", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 19–20", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division rejected Mr. Najafi’s argument that paragraph 34(1)(f) should not be read to include a lawful organization in Canada that has not engaged in unlawful activities outside of Canada because this would constitute a violation of his constitutional right to freedom of association (section 2(d) of the Charter). The Division found that Mr. Najafi can continue to live in Canada and participate freely in the KDPI if he wishes, and he can apply for a ministerial exemption pursuant to subsection 34(2) of the IRPA. Thus, it held that it cannot be assumed that holding Mr. Najafi inadmissible on the basis of paragraph 34(1)(f) of the IRPA would have “any significant negative legal consequences for him, let alone any sufficient to constitute a breach of his Charter rights” (paragraphs 16 to 18 of the decision).\n\nThe judge summarizes her findings at paragraph 7 of her reasons, reported under the neutral citation 2013 FC 876 (the Reasons) as follows: For the reasons that follow, I have determined that the Division’s decision should be upheld because it correctly determined that the applicant’s Charter rights were not infringed, reasonably determined that he was or had been a member of the KDPI and reasonably held that the KDPI had engaged in “subversion by force” of the Iranian governments. Insofar as concerns the applicant’s invocation of international law, I do not believe that the Division erred in finding there was no need to resort to international law or to depart from the settled interpretation of section 34 of the IRPA. Thus, for the reasons below, this application will be dismissed. (i) Paragraph 34(1)(b) and International law", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-8", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 21–23", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Part III of her reasons, starting at paragraph 52, the judge deals with Mr. Najafi’s argument that “subversion by force of any government” (paragraph 34(1)(b) of the IRPA) cannot be construed as including the KDPI’s use of force against the Iranian government because it was legitimate to use such force under international law.\n\nAfter summarizing Mr. Najafi’s expert evidence (paragraphs 54 and 55 of the Reasons), the judge ruled that she had to determine three issues, namely: i) What standard of review is applicable? ii) Did the Division commit a reviewable error in failing to consider international law; and iii) If so, does international law mandate the interpretation Mr. Najafi advances?\n\nIn respect of the first issue, the judge acknowledged that the most recent decisions of the Supreme Court of Canada would normally mandate that deference be afforded to the Division’s interpretation of its home statute or one closely related to its function. She then considered that a long line of authority shows that determining whether the actions of an individual or an organization fall within the scope of paragraph 34(1)(b) is a question of mixed fact and law and that the two requirements (the factual and legal interpretation of the words “subversion by force of any government”) are not to be uncoupled (paragraph 59 of the Reasons). Furthermore, she notes the similarity between the question before her and the one before this Court in B010 v. Canada (Citizenship and Immigration), 2013 FCA 87 [B010] (paragraphs 58 to 60 of the Reasons).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-9", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge concluded from this analysis that the Division’s finding regarding the applicability of paragraph 34(1)(b) is to be reviewed on the reasonableness standard. However, the judge expressly held that the selection of the standard of review is not determinative. She found that the Division’s interpretation of paragraph 34(1)(b) is not just reasonable, it is also correct (paragraph 61 of the Reasons).\n\nTurning to the second issue under this heading – did the Division err in not considering international law – the judge found that the context shows that “Parliament intended that the balancing of the soundness of motive for the use of force be a matter for consideration by the Minister under subsection 34(2) of the IRPA and not for the Division under subsection 34(1)” (paragraph 68 of the Reasons).\n\nThe judge based this conclusion on her analysis of the wording of the paragraph in the context of the section as a whole, including the legislative history (paragraphs 64 to 67). She also found support for her interpretation of paragraph 34(1)(b) in the case law and in the fact that the presumption that the legislator intended to comply with international law cannot be used to override clear provisions of a statute. Therefore, in her view, the Division did not err in declining to consult international law to construe paragraph 34(1)(b) (paragraphs 69-73).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-10", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 27–29", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge also went further and found that even if she were wrong concerning how international law was to be handled, Mr. Najafi did not establish that international law recognizes the use of force in furtherance of self-determination in the manner suggested (paragraphs 74–79 of the Reasons). Among other things, the judge ruled that Mr. Najafi does not fall within the definition of “combatant” as he never performed a “continuous combat function”. She also found that in light of section 25 (the ministerial exemption based on humanitarian and compassionate considerations) and subsection 34(2) of the IRPA, Canada could not be found in contravention of its international obligations simply because Mr. Najafi was found inadmissible under subsection 34(1) of the IRPA (paragraphs 74 to 79 of the Reasons). (ii) Section 2(d) of the Charter\n\nIn paragraphs 23 to 51 of her reasons, the judge analysed Mr. Najafi’s submission that the Division’s interpretation violates right to freedom of association under section 2(d) of the Charter and, thus, offends the presumption that Parliament intended the IRPA to operate in accordance with the Charter.\n\nThe Division construed paragraph 34(1)(f) without reference to this presumption of compliance with the Charter because, in its view, the matter did not engage a constitutional right.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-11", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 30–31", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "On this issue, the judge applied the standard of correctness, and rejected the Minister’s argument that the reasonableness standard set out by the Supreme Court of Canada in Doré v. Le Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395 applied [Doré]. In her view, the deferential standard of reasonableness does not apply when the Division is called upon to make substantive findings on Charter rights, which is what happened here. The judge further noted that the role of the Division is entirely different from that of the Minister under subsection 34(2). In her view, it is only in the latter case – when the Minister is exercising his statutory discretion – that the decision will be reviewable under the reasonableness standard for compliance with the Charter in accordance with Doré (paragraphs 32 and 36 of her Reasons).\n\nIn respect of the merits of Mr. Najafi’s argument, the judge relied on Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016, and Health Services and Support – Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27, [2007] 2 S.C.R. 391, to reject the Minister’s argument that section 2(d) was not engaged at all because this matter only involved the removal of legislated benefits (see paragraph 11 of the Reasons, in which the judge describes the impact of the Division’s decision on Mr. Najafi).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-12", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 32", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge agreed with the Minister that the decision of the Supreme Court of Canada in Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 [Suresh] offers much guidance in respect of Mr. Najafi’s submissions in this case. She first noted that in Suresh, the Supreme Court of Canada held that freedom of association does not extend to protect the act of joining or belonging to an organization that engages in violence. In her view, the Supreme Court of Canada also gave short shrift to Mr. Suresh’s argument that all his activities in Canada were perfectly legal. Finally, she relied on the following passage of Suresh, which dealt with section 19 (the predecessor to section 34): We believe that it was not the intention of Parliament to include in the s. 19 class of suspect persons those who innocently contribute to or become members of terrorist organizations. This is supported by the provision found at the end of s. 19, which exempts from the s. 19 classes “persons who have satisfied the Minister that their admission would not be detrimental to the national interest”. Section 19 must therefore be read as permitting a refugee to establish that his or her continued residence in Canada will not be detrimental to Canada, notwithstanding proof that the person is associated with or is a member of a terrorist organization. This permits a refugee to establish that the alleged association with the terrorist group was innocent. In such case, the Minister, exercising her discretion constitutionally, would find that the refugee does not fall within the targeted s. 19 class of persons eligible for deportation on national security grounds.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-13", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 33–34", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The judge then reviewed the most relevant Federal Court decisions since Suresh. Having acknowledged Mr. Najafi’s argument that these cases, as well as Suresh, are distinguishable on their facts, the judge nevertheless found that all of these cases support the principle that section 2(d) of the Charter does not protect membership in organizations that use violence. All agree that the KDPI engaged in violence many years as part of its campaign to overthrow two different regimes in Iran.\n\nHaving satisfied herself that there would be no violation of Mr. Najafi’s constitutional rights, the judge notes that it was unnecessary to go on to discuss the rationale offered by the Division.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-14", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "At the relevant time, the sections of the IRPA of interest read as follows: 3. (1) The objectives of this Act with respect to immigration are 3. (1) En matière d’immigration, la présente loi a pour objet : (h) to protect public health and safety and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (3) This Act is to be construed and applied in a manner that (3) L’interprétation et la mise en oeuvre de la présente loi doivent avoir pour effet : (d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms, including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; d) d’assurer que les décisions prises en vertu de la présente loi sont conformes à la Charte canadienne des droits et libertés, notamment en ce qui touche les principes, d’une part, d’égalité et de protection contre la discrimination et, d’autre part, d’égalité du français et de l’anglais à titre de langues officielles du Canada; (f) complies with international human rights instruments to which Canada is signatory. f) de se conformer aux instruments internationaux portant sur les droits de l’homme dont le Canada est signataire. 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-15", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 35", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : (a) engaging in an act of espionage or an act of subversion against a democratic government, institution or process as they are understood in Canada; a) être l’auteur d’actes d’espionnage ou se livrer à la subversion contre toute institution démocratique, au sens où cette expression s’entend au Canada; (b) engaging in or instigating the subversion by force of any government; b) être l’instigateur ou l’auteur d’actes visant au renversement d’un gouvernement par la force; (c) engaging in terrorism; c) se livrer au terrorisme; (d) being a danger to the security of Canada; d) constituer un danger pour la sécurité du Canada; (e) engaging in acts of violence that would or might endanger the lives or safety of persons in Canada; or e) être l’auteur de tout acte de violence susceptible de mettre en danger la vie ou la sécurité d’autrui au Canada; (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a), (b) or (c). f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b) ou c). (2) The matters referred to in subsection (1) do not constitute inadmissibility in respect of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest. [Repealed, 2013, c. 16, s. 13] (as mentioned earlier, section 34(2) was repealed and a new version enacted in subsection 42.1(1) of the IRPA in June 2013).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-16", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 35–39", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) Ces faits n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national. [Abrogé, 2013, ch. 16, art. 13] (Tel que déjà mentionné, le paragraphe 34(2) a été abrogé et une nouvelle version adoptée au paragraphe 42.1(1) de la LIPR en juin 2013).\n\nThe judge certified the question set out in paragraph 2 above. Mr. Najafi states in the conclusion of his memorandum (at paragraph 116) that this question should be answered in the affirmative. However, in his memorandum (see paragraphs 2 to 5, 54 and 92 to 114) and, at the hearing before us, he never addressed the question as formulated by the judge.\n\nMr. Najafi reformulates the substantive questions to be reviewed on appeal as follows: Did the Court err in its assessment of the Division’s failure to apply international law principles to its interpretation of “subversion by force” in section 34(1)(b) of the IRPA? Did the Court err in its assessment of the Appellant’s arguments on subversion by force of any government?\n\nAlso, Mr. Najafi raises the following question in his memorandum: Did the Applications judge err in law by finding that the Tribunal decision did not breach the Appellant’s section 2(d) right to freedom of association under the Charter? However, as I explain in paragraphs 99 and 100 below, my focus will be on the interpretation of paragraph 34(1)(f) of the IRPA.\n\nMr. Najafi does not challenge any of the Division’s factual findings. Indeed, Mr. Najafi relies on the Division’s finding that he was a member of the KDPI to support his submission on the issues referred to above, particularly his argument based on section 2(d) of the Charter.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-17", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 40–42", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is trite law that the threshold for certifying a question is: is there “a serious question of general importance which would be dispositive of an appeal”, (Canada (Minister of Citizenship and Immigration) v. Zazai, 2004 FCA 89 at paragraph 11).\n\nIt is worth reproducing again the question certified by the judge: Do Canada’s international law obligations require the Immigration Division, in interpreting paragraph 34(1)(b) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 to exclude from inadmissibility those who participate in an organization that uses force in an attempt to subvert a government in furtherance of an oppressed people’s claimed right to self-determination?\n\nAt paragraph 90 of the Reasons, the judge states very clearly that the question she was willing to certify concerns the interplay of the right alleged to exist under international law and the interpretation to be afforded to paragraph 34(1)(b) of the IRPA. However, if one takes the certified question literally, it is evident that international law does not require any exclusion, for it normally has no direct application in the domestic law of Canada. Moreover, this would not constitute a serious question, given that the role of international law in the interpretation of statutes i.e., the interplay between the two) has been discussed in several decisions of the Supreme Court of Canada and of this Court, including decisions dealing specifically with the IRPA. The established principles are of general application. Thus, they do apply to the interpretation of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-18", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 43–47", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "These principles are summarized in Ruth Sullivan, Sullivan on the Construction of Statutes (5th ed. 2008), chapter 20 (“Construction of Statutes, 2008”). As noted by the author at page 537, international law is generally used as an aid in interpreting domestic legislation. Both parties agree that the presumption that the legislator intended to comply with Canada’s international law obligations is rebuttable.\n\nThis may well explain why, as mentioned earlier, Mr. Najafi reformulated the questions to be answered in respect of paragraph 34(1)(b) (see paragraph 37 above).\n\nThat said, the judge’s intent becomes clear when one considers her comments in context - both the Division and the judge concluded that the presumption referred to above was rebutted without the need to consider and assess the content of international law because of the clear and unambiguous wording of paragraph 34(1)(b).\n\nFrom this, I understand that the question to be answered by this Court is: Can paragraph 34(1)(b) of the IRPA be interpreted to exclude from its ambit the alleged right to use force in an attempt to subvert a certain type of government in furtherance of an oppressed people’s claimed right to self-determination assuming that such right is recognized under Protocol I of the Geneva Conventions of 1949?\n\nIn this case, the only relevant international human rights instrument to which Canada is a signatory, within the meaning of paragraph 3(3)(f) of the IRPA, is the Protocol Additional to the Geneva Conventions of 12 August, 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, ratified by Canada in 1990 (“Protocol I”).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-19", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 48–50", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well known that the Geneva Conventions to which Protocol I relates and Protocol I itself are intended to protect the civilian population during an armed conflict as defined therein as well as the rights and obligations of “combatants” within the meaning of Protocol I and the Geneva Conventions. Thus, these instruments generally deal with what is often referred to in international law as jus in bello (conduct of war) as opposed to jus ad bellum (the right to wage war).\n\nThe international law issue that is relevant in this appeal is not whether international law recognizes the right of oppressed peoples to self-determination. That concept is not disputed. It was considered in Reference re Secession of Quebec, [1998] 2 S.C.R. 217.\n\nRather, the focus is on whether force can be used to achieve external self-determination against colonial domination, or alien occupation and racist regimes. As acknowledged during the hearing, Mr. Najafi’s experts do not rely on an alleged customary rule of international law in that respect. In fact, in his affidavit, René Provost, at paragraph 34, clearly states that: 34. The manner by which a people can arrive at and express a choice under its right to external self-determination is not clearly stipulated by international law.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-20", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 51–53", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Najafi’s position appears to be that in this very narrow set of circumstances, the legality of an oppressed people’s use of force to exercise the right to self-determination is positively affirmed in binding treaties. Mr. Najafi’s experts point only to Protocol I in support of this assertion (see for example René Provost’s affidavit at paragraph 41). The argument is that the use of force (i.e., violence) by the KPDI is therefore legitimate, and as such, cannot fall within the ambit of “subversion by force of any government” within the meaning of paragraph 34(1)(b).\n\nI do not understand Mr. Najafi to say that Protocol I or the Geneva Conventions contain any provision dealing specifically with the right of combatants to be granted entry to the signatories’ territories. Neither Protocol I nor the Geneva Conventions requires the signatories to grant any type of immigration status to these combatants or anybody else in their countries. As a matter of fact, there is no such provision.\n\nHence, nobody actually argues that by setting out an inadmissibility provision such as paragraph 34(1)(b) in the IRPA, Canada would be in violation of Protocol I or the Geneva Conventions.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-21", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 54–56", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is in contrast to the 1951 Convention relating to the Status of Refugees (the Refugee Convention) which expressly deals with the grant of a specific status – refugee status. As mentioned, Mr. Najafi still has refugee status, despite the fact that he was found to be inadmissible. It is worth reiterating that inadmissibility should not be confused with removal; these are two distinct concepts. It is not disputed that Mr. Najafi cannot be removed without additional substantive steps being taken in accordance with the provisions in the IRPA meant to ensure protection against “refoulement” as set out in the Refugee Convention.\n\nIn this appeal, this Court’s role is to assess whether the judge chose the appropriate standard of review for each of the questions before her and whether she applied them properly (Agraira v. Canada (Public Safety and Emergency Preparedness, 2013 SCC 36 at paragraphs 45 to 47 [Agraira]).\n\nTurning now to the standard chosen by the judge, I agree with her analysis that there is no basis, in the present context, for ousting the presumption that deference should be afforded to the Division’s interpretation of its home statute (Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61 at paragraph 34, Agraira at paragraph 50, McLean v. British Columbia (Securities Commission), 2013 SCC 67 at paragraphs 20 to 21, 33). This is especially so when one considers that the issue here is not whether the Division improperly interpreted an international instrument or a rule of customary international law. Rather, it is whether it erred in concluding that the legitimacy of the use of force is not an issue to be considered because of the clear and unambiguous language of paragraph 34(1)(b) of the IRPA.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-22", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 57–60", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "This means that to determine if the judge applied the standard appropriately, I must assess whether on the appropriate contextual and purposive analysis of paragraph 34(1)(b), the interpretation adopted by the Division is within the range of possible, acceptable outcomes.\n\nBefore embarking on my analysis of the Division’s interpretation of paragraph 34(1)(b), I will deal briefly with two arguments put forth by Mr. Najafi.\n\nFirst, at the hearing, Mr. Najafi submitted that, as a matter of principle, neither the Division nor the judge could conclude that the presumption of compliance was ousted before examining his expert evidence on the legitimacy of the KDPI’s use of force. Second, he argued that again, as a matter of principle, to oust the presumption referred to above, the legislator must expressly state that its international obligations should be disregarded (memorandum of fact and law, paragraph 93).\n\nWith respect to the first question, it is clear that like any decision-maker tasked with statutory interpretation, the Division must apply the Driedger modern approach to statutory interpretation (Construction of Statutes, 2nd Edition, 1983 at page 87): Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-23", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 61–62", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "International law may be an important part of the legal context, but it is only one of many factors and presumptions that are considered in applying this modern approach. In my view, relevant international law, like other relevant elements of the legal context, should ideally be taken into account before concluding whether or not a text is clear or ambiguous. I note that this is also the view expressed in Construction of Statutes, 2008 at page 547 but as mentioned by the author, many courts still consider ambiguity a prerequisite.\n\nThat said, the modern approach is contextual. There is therefore no single way to apply it. Indeed, there may be cases where the other factors of the relevant context are so strongly in favour of a particular interpretation that international law could only have little to no impact. In such cases, a decision-maker may not be required to go through the exercise of assessing the evidence before it, particularly when what is argued is not really a direct violation of an international instrument to which Canada is a signatory, or does not involve a particularly well established rule of customary international law.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-24", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 63–64", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Moreover, recently, the Supreme Court of Canada in Németh v. Canda (Justice), 2010 SCC 56, [2010] 3 S.C. R. 281 [Németh], made the point that section 115 of the IRPA, read in the context of the statute as a whole, was clear, before it reviewed the extent of Canada’s obligations under the Refugee Convention. Thereafter, having reviewed the Refugee Convention and concluded that it provided for more than what was reflected by the meaning it earlier ascribed to section 115, the Court simply said that the clear meaning of the section must be given effect as the presumption of compliance with international law is rebuttable (paragraphs 31, 34 and 35).\n\nTurning to Mr. Najafi’s second argument, I cannot agree that the legislator must expressly state in the provision at issue that its international obligations should be overcome. If it were so, the Supreme Court of Canada could not have reached the conclusion that it did in Németh that section 115 of the IRPA does not address removal by extradition when it was acknowledged that the ordinary meaning of the words used in the section, “removed from Canada”, could include extradition as a form of removal. Thus, the matter is not one of principle. Rather, it is simply a question of properly applying the contextual approach, taking into consideration the words of paragraph 34(1)(b) (in French and English) and reading them in their entire context harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. In assessing the reasonableness of the Division’s interpretation, I will now proceed in this way.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-25", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 65–67", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by the Division, the word “subversion” is not defined in the Act, and there is no universally adopted definition of the term. The Black’s Law Dictionary’s definition to which the Division refers at paragraph 27 (particularly, the words “the act or process of overthrowing … the government”) is very much in line with the ordinary meaning of the French text («actes visant au renversement d’un gouvernement »). Although in certain contexts, the word “subversion” may well be understood to refer to illicit acts or acts done for an improper purpose, the words used in the French text do not convey any such connotation. I am satisfied that the shared meaning of the two texts does not ordinarily include any reference to the legality or legitimacy of such acts.\n\nI note that the word “subversion” is used only in the English version of paragraph 34(1)(b), while it is used in both the English and French versions of paragraph 34(1)(a). This may or may not signal a different meaning, but it is not my purpose to properly construe paragraph 34(1)(a) in this appeal. I will only note that in Qu v. Canada (Minister of Citizenship and Immigration), [2000] 4 F.C. 71, rev’d in 2001 FCA 399, the application judge was dealing with a predecessor of paragraph 34(1)(a), and this Court never had to deal with the meaning of “subversion” on appeal.\n\nIn the provision at issue here, the word “subversion” must be read in the context of the expression “subversion by force of any government” (in French: “actes visant au renversement d’un gouvernement par la force”), whereas in paragraph 34(1)(a), it is used in reference to “an act of subversion against a democratic government”.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-26", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 68–71", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "While Mr. Najafi has attempted to frame the debate around the interpretation in terms of the words “subversion by force” in paragraph 34(1)(b), and the legitimacy of the use of the force in certain contexts mentioned above under international law, it is apparent from the expert evidence he relies on that a key question is the legitimacy of the government against which such use of force is directed.\n\nThe notion of an oppressed people’s right of self-determination to use force on which he relies, is directly linked to the “illegitimacy” of the government being opposed because of colonial domination or alien occupation and racism.\n\nThis is why the judge put as much emphasis as she did on the immediate context of paragraph 34(1)(b). The interpretative question raised by these facts is whether the word “government” is limited to “democratically elected government” or some other formula designating a government whose legitimacy is not in issue, or whether it applies to any government, even it is oppressive and racist. When one considers the words of paragraph 34(1)(b), (“any government”), they are clear and unambiguous. The words “subversion by force of any government” do not on their face, imply a qualification of any kind with respect to the government in question.\n\nAlthough the IRPA has many objectives listed in section 3(1), Parliament indicated an intent to prioritize security (paragraph 3(1)h)) when it enacted paragraph 34(1)(b). Indeed, this paragraph provides specifically that a person is inadmissible on security grounds. Thus, the focus of the provision under review is on the right of the government to control its frontier and to deny entry to persons who may be a threat to its security.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-27", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 72–73", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the legislative evolution of this specific ground of inadmissibility, the first such provision was included in the Immigration Act, S.C. 1919, c. 25, (paragraph 3(6)(n)), referred to “persons who believed in or advocated the overthrow by force or violence of the Government of Canada or of constituted law and authority, or who disbelieved in or are opposed to organized government”, (in French: «les personnes qui croient au renversement ou qui préconisent le renversement, par la force ou la violence du gouvernement du Canada ou de la loi ou de l’autorité constituée, ou qui ne croient pas à un gouvernement organisé et s’y opposent…»).\n\nIt was in 1952 that the word “subversion” was first used in the Immigration Act, S.C. 1952, c. 42. Paragraph 5(m) included “persons who have engaged in or advocated or … are likely to engage in or advocate subversion by force or other means of democratic government…” (the French text however, still referred to « le renversement, par la force ou autrement, du régime, des institutions ou des méthodes démocratiques… ». A new paragraph, 5(n), was also included to prohibit the entry of “persons … likely to engage in espionage, sabotage or any subversive activity directed against Canada or detrimental to the security of Canada” (in French: « les personnes qui … sont susceptibles de se livrer à l’espionnage, au sabotage ou à tout autre activité subversive dirigée contre le Canada ou préjudiciable à sa sécurité »). These provisions were carried forward in the 1970 Revised Statutes of Canada.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-28", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 74–77", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The 1976-77 amendments to the Immigration Act (S.C. 1976-77, c. 52) moved the relevant prohibited class provisions to section 19, dealing with inadmissible classes. Paragraph 19(1)(f) still refers to “subversion by force of any government”, while the French text refers to « renversement d’un gouvernement par la force ». The words “espionage, sabotage or any subversive activity” were changed and the class was moved to paragraph 19(e), which applied to acts of espionage or subversion against democratic governments (in French: « des actes d’espionage ou de subversion contre des institutions démocratiques »). In 1992 (S.C. 1992, c. 49) the provisions were all moved to paragraph 19(1)(e), with no changes to the words referred to above.\n\nWith the adoption of the new Immigration Refugee Protection Act (IRPA, S.C. 2001 c. 27), the inadmissibility classes based on security grounds were moved to section 34, which is the version of the provisions on which the Division relied (see paragraph 34 above).\n\nI note that in the various incarnations of the prohibited or inadmissible classes, there were many other changes, but they are not relevant to the present issue.\n\nIt is also worth mentioning that as of 1927 (1927 Revised Statutes of Canada), the various iterations of the relevant provisions included the possibility of obtaining a ministerial exemption. The provision regarding the ministerial exemption only expressly refers to the need to ensure that such exemption is not contrary to public interest as of 1952 (S.C. 1952, c. 42, paragraph 9(c)). “[C]ontrary to public interest” became “detrimental to the national interest” in 1992 (S.C. 1992, c. 49, paragraph 19(1)(f) in fine).", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-29", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 78–81", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is little material of interest in the legislative history of paragraph 34(1)(b).This source is to be given less weight in any event. That said, the judge could refer to the material she describes at paragraph 67 of the Reasons, as it simply confirms what one gathers from the legislative evolution – that Parliament intended the expression “subversion by force of any government” in paragraph 34(1)(b) to have a broad application.\n\nThe comments made and the ultimate rejection of a motion to replace the words “of any government” with “democratically elected government” in paragraph 34(1)(b) before the Standing Committee on Citizenship and Immigration and the comments made in the House of Commons during the debate at the third reading, confirm that Parliament was very much alive to arguments like those advanced by Mr. Najafi when it adopted the provision.\n\nObviously, when I state that Parliament intended for the provision to be applied broadly, I am referring to the inadmissibility stage, for, as noted by the Supreme Court of Canada in Suresh, albeit in a different context, the legislator always intended that the Minister have the ability to exempt any foreign national caught by this broad language, after considering the objectives set out in subsection 34(2). This is done by way of an application. (As discussed above, subsection 34(2) is now subsection 42.1(1). Per subsection 42.1(2), it can now also be granted on the Minister’s own initiative).\n\nThis mechanism can be used to protect innocent members of an organization but also members of organizations whose admission to Canada would not be detrimental or contrary to national interest because of the organization’s activities in Canada and the legitimacy of the use of force to subvert a government abroad.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-30", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 82–85", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is obvious that in the latter case in particular, the resolution of international law issues may be complex. This supports the argument that the Minister is better equipped to deal with such issues in the context of an application for ministerial exemption. An example of such reasoning is provided by the Geneva Conventions Act, R.S.C., 1985, c. G-3, section 9, which allows the Minister of Foreign Affairs to issue a certificate stating that a state of war or of international or non-international armed conflict existed between states or within a state.\n\nAt this stage of my analysis, I find that the language of paragraph 34(1)(b) is clear.\n\nAs in Németh, I will now consider the international law principle put forth by Mr. Najafi in support of his view that paragraph 34(1)(b) should be construed as follows: Subversion by force means using force to overthrow a government but does not include force used by lawful combatants protected by Protocol I.\n\nIn Febles v. Canada (Citizenship and Immigration), 2014 SCC 68 [Febles], at paragraph 12, the Supreme Court of Canada reiterated that international conventions must be construed in accordance with Articles 31 and 32 of the Vienna Convention on the Law of Treaties, Can. T. S. 1980 No. 37, which are similar to our own general principles of statutory interpretation.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-31", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 86–87", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The evidence of Mr. Najafi’s experts in this respect appears to be somewhat incomplete. For example, they do not explain how they construed the following paragraphs of the Preamble to Protocol I and what effect they gave to its Article 4. Preamble: Expressing their conviction that nothing in this Protocol or in the Geneva Conventions of 12 August 1949 can be construed as legitimizing or authorizing any act of aggression or any other use of force inconsistent with the Charter of the United Nations, Reaffirming further that the provisions of the Geneva Conventions of 12 August1949 and of this Protocol must be fully applied in all circumstances to all persons who are protected by those instruments, without any adverse distinction based on the nature or origin of the armed conflict or on the causes espoused by or attributed to the Parties to the conflict Article 4: The application of the Conventions and of this Protocol, as well as the conclusion of the agreements provided for therein, shall not affect the legal status of the Parties to the conflict. Neither the occupation of a territory nor the application of the Conventions and this Protocol shall affect the legal status of the territory in question.\n\nI also note that the view of these experts is at odds with the view expressed by Heather Wilson in her book entitled: International Law and the Use of Force by National Liberation Movements (Book of Authorities, Volume 4, Tab 52). In her conclusions at page 135, she states that to contend unequivocally that Protocol I reflects a change in international law giving international liberation movements the authority to use force legitimately would be an overstatement.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-32", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 88–91", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, as the Division did not comment on this evidence, I am prepared to assume, without deciding, that the legal effect of Protocol I is as stated in the affidavits of Mr. Najafi’s experts. This will ensure that I complete my review of the overall legal context to Mr. Najafi’s greatest advantage.\n\nEven if I adopt this approach, I cannot conclude from the overall legal context that paragraph 34(1)(b) should be construed as encompassing only the use of force that is not legitimate or lawful pursuant to international law.\n\nLike the Division, I find that legality or legitimacy may well be an issue that the Minister can consider under subsection 34(2) of the IRPA, but it is not one that is relevant to the application of paragraph 34(1)(b). Thus, the Division’s interpretation is clearly reasonable. I would answer the certified question, as formulated by the judge or reformulated at paragraph 46, in the negative.\n\nIn reaching this conclusion, I considered Mr. Najafi’s argument that the Division’s interpretation might capture a member of the Canadian Armed Forces within the ambit of paragraph 34(1)(b) of the IRPA. This hypothetical was meant to illustrate the “absurdity” of the Division’s interpretation. In my experience, one can usually concoct a dubious example designed to show that a particular provision is overbroad and cannot have been intended. However, courts must consider that the Act will be administered in a reasonable way. It strains credulity to suppose that an inadmissibility report would be issued in respect of a member of the Canadian Armed Forces based on his or her actions as a Canadian soldier.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-33", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 92–96", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Prior to the hearing, the parties debated as to whether or not Mr. Najafi was required to serve a notice of constitutional question pursuant to section 57 of the Federal Courts Act, R.S.C. 1985, c. F-7, in order to raise his argument based on section 2(d) of the Charter.\n\nDespite the fact that he believes that it was not necessary to send such a notice, Mr. Najafi did so in an abundance of caution. However, both parties asked the Court to clarify the issue.\n\nIn a letter to the Court dated March 31, 2014, Mr. Najafi’s counsel made it absolutely clear that his position had been consistent from the outset, and that what Mr. Najafi claims is that “the provision must be interpreted so as to not infringe the Appellant’s right to associate protected by subsection 2(d) of the Charter. This requires the Court to exclude from the scope of subsection 34(1) memberships in organizations that are legal in Canada and that do not support illegal activities committed outside of Canada”. Mr. Najafi’s counsel stated that he was relying on the presumption of compliance with constitutional law, which he says is sufficient to enable the Division and this Court to read down paragraph 34(1)(f) so as to exclude organizations such as the KDPI.\n\nAgain, at the hearing and at the request of the panel, Mr. Najafi made it abundantly clear that he had chosen not to argue that paragraph 34(1)(f) is invalid, inapplicable or inoperable on constitutional grounds and that therefore, section 57 of the Federal Courts Act, should not apply.\n\nI agree. In such a case, no notice of constitutional question is required.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-34", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 97–100", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, it is important to note that although reading down can be used as an interpretive technique or as a constitutional remedy, the distinction between the two is important in the context of Charter cases. When one relies on the presumption of compliance with the Charter to narrow the interpretation of a provision, the issue of whether that language, without the exclusion, might be justifiable under section 1 does not arise. However, when reading down is used as a remedy in the context of a constitutional challenge to the validity of a provision, its validity is first assessed and the need to read down words does not arise unless and until any possible defence based on section 1 has been tried and failed (Construction of Statutes, 2008 at pages 465 to 466).\n\nThe judge never had to determine the standard of review applicable to the proper interpretation of the word “organization” in paragraph 34(1)(f) as she never got to that question, having concluded that the matter did not involve a violation of any Charter right.\n\nWith the benefit of Mr. Najafi’s clarifications as to his arguments, (see paragraphs 94 and 95 above), there is no need to deal with the judge’s finding that the matter did not involve Charter violation, if in any event, paragraph 34(1)(f) of the IRPA cannot be read down so as to exclude organizations such as the KDPI, simply as a matter of interpretation, rather than as a remedy.\n\nI will thus first determine whether, using the Driedger modern approach to statutory interpretation (and paragraph 3(3)(d) of the IRPA), the Division could reasonably construe the word “organization” used in paragraph 34(1)(f) as excluding the KDPI in the absence of a constitutional challenge to the validity of this provision.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-35", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 101–105", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Division construed paragraph 34(1)(f) in accordance with a long line of jurisprudence, including this Court’s decision in Gebreab v. Canada (Public Safety and Emergency Preparedness), 2010 FCA 274, that no temporal connection is required between the membership and the acts referred to in paragraphs 34(1)(a), (b) and (c) of the IRPA. It also construed it as applicable to activities carried out by the organization outside of Canada even if its activities in Canada were legal.\n\nMr. Najafi does not challenge that this is a reasonable interpretation when applied to an organization to which section 2(d) of the Charter would not apply. However, he argues that this is not so if membership in an organization protected by the Charter is involved. He also adds that subversion by force by any organization would have to be excluded, even when it is not so excluded, where the person has himself or herself engaged in such acts under paragraph 34(1)(b).\n\nAt the hearing, Mr. Najafi’s counsel proposed that the word “organization” should simply be construed as follows: An organization other than an organization operating in Canada whose activities are lawful in Canada.\n\nIn my view, this is too wide. It would offend the holding of the Supreme Court of Canada in Suresh.\n\nIn Suresh, it was argued that the organization at issue never engaged in any unlawful activities in Canada. Still, the Supreme Court of Canada found that section 2(d) does not protect the right to associate with an organization which engages in violence or terrorism abroad while the person is a member.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-36", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 106", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the interpretation of paragraph 34(1)(f), I find it relevant that in Suresh, the Supreme Court of Canada noted that the inadmissibility provision (in that case, section 19 of the Immigration Act, R.S.C. 1985, c. I-2, dealing with membership in an organization engaged in terrorism) must be read with the section providing for a ministerial exemption (the predecessor of subsection 34(2) of the IRPA), as it evidences the legislator’s intention to allow for a balancing of Charter values with other Canadian fundamental values, such as national interest, national security and the protection of the safety of the Canadian society (Suresh, at paragraphs 109 to 110). This is especially so since Agraira and Doré made it abundantly clear that the Minister’s decision in respect of an exemption under subsection 34(2) must involve such a balancing of Charter rights and values with the important objectives set out in that subsection.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-37", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "paras 107–108", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having considered the words of paragraph 34(1)(f) read in their entire context, which includes subsection 34(2), in their grammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the provision, and the Act, as well as considering the intention of Parliament to comply with the Charter, I conclude that the Division could not reasonably construe the word “organization” as excluding an organization operating in Canada, whose activities are lawful in Canada and which did not engage abroad in any illicit activities of the kind set out in paragraphs 34(1)(b) while the person was a member. To do so would involve rewriting the provision to such an extent that it cannot be done in the absence of a constitutional challenge. In Febles, at paragraph 67, the Supreme Court of Canada made it clear that “where Parliament’s intent for a statutory interpretation is clear and there is no ambiguity, the Charter cannot be used as an interpretative tool to give the legislation a meaning which Parliament did not intend”.\n\nGiven that paragraph 34(1)(f) of the IRPA has a wider meaning than what Mr. Najafi contends, if Mr. Najafi considered this meaning to violate section 2(d) of the Charter, he should have called for a declaration that this paragraph violates section 2(d) and, thus, is invalid. Had he done so and had he succeeded in establishing a section 2(d) violation, flexible remedies might have been available. But this is not the case before us.", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-99694-38", + "doc_type": "caselaw", + "act_code": "2014 FCA 262", + "act_short": "Najafi", + "act_name": "Najafi v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Najafi v. Canada (Public Safety and Emergency Preparedness), 2014 FCA 262", + "marginal_note": "para 109", + "heading": "Security inadmissibility under IRPA s. 34(1)(b), subversion against a government", + "part": "Federal Court of Appeal", + "division": "", + "text": "In 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 NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-281-13 STYLE OF CAUSE: BEHZAD NAJAFI v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 1, 2014 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: PELLETIER J.A. NEAR J.A. DATED: nOVEMBER 7, 2014 APPEARANCES: Lorne Waldman Clare Crummey For The Appellant David Cranton Sofia Karantonis For The Respondent SOLICITORS OF RECORD: Waldman and Associates Toronto, Ontario For The Appellant William F. Pentney Deputy Attorney General of Canada For The Respondent", + "current_to": "2014-11-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/99694/index.do" + }, + { + "id": "fca-108889-1", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 1–5", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Immigration Division of the Immigration and Refugee Board of Canada found the appellant to be inadmissible under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act). The Immigration Division found that the appellant was a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in terrorism. The Immigration Division reasoned that:\n\nA judge of the Federal Court dismissed an application for judicial review of the decision of the Immigration Division (2014 FC 384) that the appellant was inadmissible under paragraph 34(1)(f) of the Act. The Judge certified the following question: Does Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678, change the existing legal test for assessing membership in terrorist organizations, for the purposes of assessing inadmissibility under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27?\n\nThis is an appeal from the decision of the Federal Court.\n\nIn my view, the issues to be resolved on this appeal are:\n\nThe questions before this Court are: did the Federal Court select the appropriate standard of review and apply it correctly? To answer these questions this Court must “step into the shoes” of the Federal Court and focus on the administrative decision at issue (Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559, at paragraphs 45 and 46).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-2", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 6–10", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court did not expressly consider the standard of review. It framed the issue before it to be whether the decision of the Immigration Division was reasonable with respect to whether the appellant was a member of an organization that there are reasonable grounds to believe engaged in terrorism. The Federal Court noted that the outcome would turn on whether it was reasonable for the Immigration Division to find that membership in the TNA, a political party, was tantamount to membership in the LTTE (reasons, at paragraph 3).\n\nThe parties disagree about the standard of review to be applied to the Immigration Division’s interpretation of “member”.\n\nThe appellant argues that the definition of “member” is a legal question of general importance outside of the expertise of the Immigration Division. The word “member” therefore must be interpreted correctly. The appellant also relies upon the decision of this Court in Kanthasamy v. Canada (Minister of Citizenship and Immigration), 2014 FCA 113, 459 N.R. 367.\n\nThe respondent submits that this Court has previously applied the reasonableness standard to the Immigration Division’s interpretation of member: Poshteh v. Canada (Minister of Citizenship and Immigration), 2005 FCA 85, [2005] 3 F.C.R. 487.\n\nIn my view, in this case nothing turns on the standard of review. On the basis of the required textual, contextual and purposive analysis conducted below, there is only a single reasonable interpretation of the word “member” (McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895, at paragraph 38; Canada (Minister of Public Safety and Emergency Preparedness v. Huang, 2014 FCA 228, 464 N.R. 112, at paragraph 39).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-3", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 11–15", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, the substance of the decision of the Immigration Division is to be reviewed on the standard of reasonableness.\n\nThe appellant submits that the approach of the Supreme Court to complicity in Ezokola reflects broader concerns and articulates principles of interpretation of wider application. The appellant asserts that the Supreme Court’s concern in Ezokola about excluding those who are guilty of no wrongdoing should also guide the interpretation of “membership” under paragraph 34(1)(f) of the Act. It follows, the appellant argues, that membership should not be extended to those who are not involved in terrorist activities or who are loosely linked to a terrorist organization or who are compelled to join a terrorist organization. The appellant further argues that in keeping with the parameters of what the Supreme Court found in Ezokola to be blameworthy conduct, the principled nexus must be a significant contribution to the wrongful actions of the group by a true member who joined without coercion or compulsion.\n\nI disagree that the decision of the Supreme Court in Ezokola requires modification of the legal test for membership in a terrorist organization. I reach this conclusion for the following reasons.\n\nI begin by discussing the scheme of the Act and the nature of the issue before the Supreme Court in Ezokola.\n\nArticle 1F(a) of the United Nations Convention Relating to the Status of Refugees, Can. T.S. 1969 No. 6 (Refugee Convention) excludes individuals from the definition of “refugee” if there are “serious reasons for considering that [they have] committed a crime against peace, a war crime, or a crime against humanity”. Article 1F(a) is set out in the appendix to these reasons, together with all sections of the Act cited in these reasons.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-4", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 16–19", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Article 1F(a) is incorporated into Canadian law by section 98 of the Act.\n\nAs a matter of law, criminal liability is not confined to the direct perpetrators of a crime. As the Supreme Court noted in Ezokola, a murder conviction can attach equally to one who pulls the trigger as well as to one who provides the gun (Ezokola, at paragraph 1).\n\nAt issue in Ezokola was the line between mere association and culpable complicity (Ezokola, at paragraph 4). The Court found that complicity arises by contribution; Article 1F(a) requires serious reasons for considering that an individual has voluntarily made a significant and knowing contribution to a group’s crime or criminal purpose (Ezokola, at paragraph 8).\n\nParagraph 35(1)(a) of the Act is the domestic inadmissibility provision that parallels Article 1F(a). In material part, paragraph 35(1)(a) of the Act provides: 35. (1) Human or international rights violation – A permanent resident or a foreign national is inadmissible on grounds of violating human or international rights for 35. (1) Emportent interdiction de territoire pour atteinte aux droits humains ou internationaux les faits suivants : (a) committing an act outside Canada that constitutes an offence referred to in sections 4 to 7 of the Crimes Against Humanity and War Crimes Act; [Emphasis added.] a) commettre, hors du Canada, une des infractions visées aux articles 4 è 7 de la Loi sur les crimes contre l’humanité et les crimes de guerre; [Le souligné est de moi.]", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-5", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 20–23", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The present appeal implicates subsection 34(1) of the Act: 34. (1) A permanent resident or a foreign national is inadmissible on security grounds for 34. (1) Emportent interdiction de territoire pour raison de sécurité les faits suivants : […] [. . .] (c) engaging in terrorism; c) se livrer au terrorisme; […] [. . .] (f) being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraphs (a), (b), (b.1) or (c). [Emphasis added.] f) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle est, a été ou sera l’auteur d’un acte visé aux alinéas a), b), b.1) ou c). [Le souligné est de moi.]\n\nRead together, clear differences exist between subsections 34(1) and 35(1). Under subsection 34(1) an inadmissibility finding flows from engaging in terrorism or membership in an organization that engages in terrorism; under subsection 35(1) an inadmissibility finding flows from the commission of an offence. Because criminal liability attaches to both the direct perpetrators and their accomplices, complicity is relevant to the subsection 35(1) analysis.\n\nIn contrast, nothing in paragraph 34(1)(f) requires or contemplates a complicity analysis in the context of membership. Nor does the text of this provision require a “member” to be a “true” member who contributed significantly to the wrongful actions of the group. These concepts cannot be read into the language used by Parliament.\n\nThis textual analysis of paragraph 34(1)(f) is informed by contextual and purposive considerations.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-6", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 24–26", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The first contextual factor is paragraph 34(1)(c) of the Act which renders a person inadmissible for “engaging in terrorism”. Thus, paragraph 34(1)(c) of the Act contemplates actual participation in acts of terrorism, while paragraph 34(1)(f) is only concerned with membership in a terrorist organization. On the appellant’s interpretation of “membership”, paragraph 34(1)(c) would be redundant.\n\nMoreover, as noted by the Federal Court in Nassereddine v. Canada (Minister of Citizenship and Immigration), 2014 FC 85, 22 Imm. L.R. (4th) 297, at paragraph 74, while paragraph 34(1)(c) could possibly engage a consideration of complicity, this provision is not relevant to the finding under review that the appellant is inadmissible as a result of his membership in the TNA.\n\nThe second contextual factor is section 42.1 of the Act which permits the Minister to find a person not to be inadmissible pursuant to section 34 if the Minister is satisfied that such a finding is not contrary to the national interest. Because of the very broad range of conduct that gives rise to inadmissibility under paragraph 34(1)(f), the Minister is given discretion to grant relief against inadmissibility. There is no similar relieving provision applicable to a finding of inadmissibility under paragraph 35(1)(a). A relieving provision is not required where inadmissibility flows from the commission of an offence whether as perpetrator or accomplice.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-7", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 27–31", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, I note that the purposes underlying subsection 34(1) and paragraph 35(1)(a) are very different. Paragraph 34(1)(f) is animated by security concerns. This purpose is served by a wide definition of membership. In contrast, paragraph 35(1)(a) guards against abuse of the Refugee Convention by those who create refugees: those who create refugees are not refugees themselves (Ezokola, at paragraph 34).\n\nHaving concluded that Ezokola does not compel any change to the legal test used to establish membership, I next consider the reasonableness of the decision of the Immigration Division.\n\nAs explained above, the Immigration Division found that the appellant’s membership in the TNA constituted membership in the LTTE. I conclude on the basis of the evidentiary record before the Immigration Division that its decision was reasonable.\n\nThat said, great caution must be exercised when finding membership in one organization to be a proxy for membership in another. Particularly in the context of nationalist or liberation movements, the mere sharing of goals and coordination of political activities may well not justify this type of analysis.\n\nWith respect to consideration of the reasonableness of the decision of the Immigration Division in this case, there were three distinct categories of evidence before it: third-party country condition reports, the appellant’s own statements and the appellant’s contacts with senior LTTE leadership.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-8", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by the Immigration Division at paragraphs 28 to 42 of its reasons, the third-party country condition documentation included the following information about the LTTE’s influence over the TNA: • A Jane’s World Insurgency and Terrorism Report noted the LTTE’s instruction to Tamil leaders to join the TNA and that the LTTE head-office selected the TNA’s nominees in the 2004 election. The LTTE was said to have then launched a massive campaign in favour of TNA candidates. The campaign included the killing of several anti-TNA candidates and their supporters (Appeal Book, Volume 2, Tab 8, at pages 514-515). • A UNHCR “Background Paper on Refugees and Asylum-Seekers from Sri Lanka” reported the LTTE announced support for the TNA and further reported that candidates from rival parties were killed, allegedly by the LTTE (Appeal Book, Volume 4, Tab 13, at page 1017). • A chapter in “The Political Handbook of the World: 2005-2006” described the 2004 elections as “the first time the TNA explicitly served as the proxy of the LTTE, winning 22 seats in the north and east” (Appeal Book, Volume 2, Tab 7, at page 439). • An Amnesty International report covering Sri Lanka for 2005 reported that “[t]he LTTE-affiliated Tamil National Alliance (TNA) took the majority of seats in the north-east, where elections were marred by vote rigging, intimidation and violence” including the killing of rival candidates (Appeal Book, Volume 4, Tab 13, at page 1077).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-9", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "para 32", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "• A BBC News report quoted the appellant as saying: “To us the LTTE is the only movement that counts and [Tigers’ chief Velupillai] Prabhakaran is the only leader who counts”; the election was more a referendum on the armed struggle; and “[t]he world is saying, alright you fought and did some wonders but what guarantee is there that you have the backing of the people, […] this election will prove 70% to 80% of the Tamil people back the rebels” (Appeal Book, Volume 2, Tab 7, at pages 380-381). • The 2001 TNA election manifesto stated that in 50 years no just solution was found to the Tamil national question: Consequently, it was inevitable, that the armed struggle gained in strength, and the Liberation Tigers of Tamil Eelam came to occupy a paramount position, and play a pivotal role in the struggle of the Tamil nationality to win their rights. It would be futile not to recognize this reality. (Appeal Book, Volume 2, Tab 7, at page 294) • The 2004 election manifesto of the TNA advised: Accepting LTTE’s leadership as the national leadership of the Tamil Eelam Tamils and the Liberation Tigers as the sole and authentic representatives of the Tamil people, let us devote our full cooperation for the ideals of the Liberation Tigers’ struggle with honesty and steadfastness. Let us endeavour determinedly, collectively as one group, one nation, one country, transcending race and religious differences, under the leadership of the LTTE for a life of liberty, honour and justice for the Tamil people. Let us work side by side with the LTTE, who are fighting for the protection and autonomous life of the Tamil speaking people, for the political initiatives under their leadership.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-10", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 32–33", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "[Emphasis added.] (Appeal Book, Volume 2, Tab 7, at page 292) • The International Crisis Group reported in 2008 that the TNA’s platform was “pro-LTTE” and the TNA members of parliament chose “not to risk taking political positions independent from the LTTE” (Appeal Book, Volume 4, Tab 13, at page 1233). • In a speech delivered in South Africa, the appellant stated “And we the Eelam Tamils have decided to fight. We shall fight, but we want your help. We shall fight in the sea; we shall fight in the air: we shall fight in the land and when we fight it out and we have nothing but blood, toil and tears to give to our country” (Appeal Book, Volume 6, Tab 17, at pages 1644-1645).\n\nIn an interview conducted by an Inland Enforcement Officer, the appellant stated that the LTTE leader, Prabhakaran, had not initiated the TNA but “would have given his blessings” because “they are both fighting for the same cause” and he “knew that the TNA is being formed for Tamil cause” (Appeal Book, Volume 1, Tab 6, at pages 172-173). The appellant agreed “that TNA members were aligned with LTTE in Tamil cause” (Appeal Book, Volume 1, Tab 6, at page 182). Before the Immigration Division the appellant testified that while the LTTE’s violence was not ideal, “mass confrontation of the government was something unavoidable though unpalatable” (Appeal Book, Volume 6, Tab 18, at page 1678).", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-11", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 34–36", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant admitted to attending a number of meetings with senior members of the LTTE and his shared goals with the LTTE. He stated his view of the inevitability of the LTTE’s armed struggle. Specifically: • The appellant quoted Prabhakaran as stating “we had to join the work as a team” with “[the LTTE] agitating the armed struggle and [the TNA] agitating Parliament struggle only, we call it the over ground movement” (Appeal Book, Volume 1, Tab 6, at page 177). • While denying that he received “directions” from Prabhakaran, the appellant considered the TNA parliamentary agitation “running parallel” with and sharing the “goal” of the LTTE (Appeal Book, Volume 1, Tab 6, at page 184). • While his own role was limited to parliamentary activism, the appellant considered armed struggle to be “part of any freedom struggle” and considered the LTTE’s armed struggle “unavoidable” (Appeal Book, Volume 1, Tab 6, at page 199).\n\nThe appellant argues that the Immigration Division ignored evidence that was favourable to the appellant.\n\nHowever, it is settled law that an adjudicator is not required to refer to every piece of evidence. More importantly, the evidence before the Immigration Division was conflicting. The reasons of the Immigration Division demonstrate that the member sifted through the record and was alive to the appellant’s challenge to the credibility of certain documents. The Immigration Division’s findings were amply supported on the record before the Immigration Division.", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-108889-12", + "doc_type": "caselaw", + "act_code": "2015 FCA 86", + "act_short": "Kanagendren", + "act_name": "Kanagendren v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kanagendren v. Canada (Citizenship and Immigration), 2015 FCA 86", + "marginal_note": "paras 37–38", + "heading": "Security inadmissibility for membership under IRPA s. 34(1)(f); membership requires no complicity analysis", + "part": "Federal Court of Appeal", + "division": "", + "text": "Section 33 of the Act requires only “reasonable grounds to believe” that facts giving rise to inadmissibility are present. In my view, the Immigration Division’s conclusion that there were “reasonable grounds to believe” in this case was within the range of outcomes acceptable and defensible on the facts and the law. The decision was therefore reasonable.\n\nFor these reasons, I would dismiss the appeal. I would answer the certified question as follows: Ezokola v. Canada (Minister of Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678 does not change the existing legal test for assessing membership in terrorist organizations under paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. “Eleanor R. Dawson” J.A. “I agree. David Stratas J.A.” “I agree. Richard Boivin J.A.”", + "current_to": "2015-04-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/108889/index.do" + }, + { + "id": "fca-35313-1", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 1–5", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The issue in this appeal is whether the appellant is a member of a criminal organization so as to deny him the right of appeal to the Immigration Appeal Division (the IAD) on the question of whether he is inadmissible pursuant to paragraph 37(1)(a) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA).\n\nThis is an appeal against the decision of the Federal Court, dated September 6, 2005, reported as (2005), 258 D.L.R. (4th) 303, which upheld the decision of the Immigration Division of the Immigration and Refugee Board (the Board), wherein it issued a deportation order against the appellant on the grounds of organized criminality pursuant to paragraph 37(1)(a) of the IRPA.\n\nThe following questions were certified by the Judge: (a) Do the words “being a member of an organization” in paragraph 37(1)(a) of the IRPA include a person who was not a member at the time of reporting but was a member before that time? (b) What constitutes an “organization” within the meaning of paragraph 37(1)(a) of the IRPA, and does the A.K. Kannan gang fit within that meaning?\n\nThe appellant raised an additional issue as to whether the Judge erred in determining that the Board was entitled to consider certain police officers’ reports and testimony, in particular evidence about alleged criminal activity that was not followed by charges or convictions.\n\nThe facts may be briefly summarized. The appellant is a 35‑year-old citizen of Sri Lanka. He arrived in Canada in February 1990 and made a successful claim to be a Convention refugee. He became a permanent resident on July 17, 1992.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-2", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 6–8", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant has three criminal convictions: (1) failing to comply with a recognizance, dated January 24, 1992; (2) trafficking in a narcotic, dated July 8, 1996; and (3) obstructing a peace officer, dated February 1998. The appellant has also been investigated but never charged for gang‑related occurrences for his role in numerous offences which included attempted murder, assault with a weapon, aggravated assault, possession of a weapon dangerous to the public, pointing a firearm and using a firearm to commit an offence, threatening, extortion, and trafficking.\n\nThe appellant was identified by the Toronto police as the leader of A.K. Kannan, one of two rival Tamil gangs operating in Toronto. The appellant admitted his former involvement in the gang to police. He also admitted, in a statement to police on April 9, 2001, that his nickname is “A.K. Kannan”, the same name of the group of which he is alleged to be a member.\n\nThe appellant was reported under paragraph 27(1)(d) [as am. by S.C. 1992, c. 49, s. 16(F)] of the Immigration Act, R.S.C., 1985, c. I‑2 (repealed) (the former Act), by virtue of his drug trafficking conviction. He was subsequently reported under paragraph 27(1)(a) [as am. idem] and 19(1)(c.2) [as am. by S.C. 1996, c. 19, s. 83] of the former Act as a person for whom there are reasonable grounds to believe is engaged in activity planned and organized by a number of persons acting together to commit criminal offences. The allegation was that the appellant “is or was a member of an organization known as the A.K. Kannan gang”.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-3", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 9–12", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "An inquiry under the former Act commenced in January 2002. When the IRPA came into force in June 2002, the inquiry continued under sections 36 and 37 of the IRPA. The appellant conceded that he was a person described in section 36 due to his drug trafficking conviction, but he disputed the organized criminality allegation.\n\nThe importance of the inquiry to the appellant was that, unless he was found not to be a person described in paragraph 37(1)(a) of the IRPA, the appellant would be deported to Sri Lanka without a right of an appeal to the IAD, having regard to subsection 64(1) of the IRPA.\n\nThe Board made a finding on October 4, 2004 that the appellant is inadmissible for organized criminality pursuant to paragraph 37(1)(a) of the IRPA because he was a member of an organization, the A.K. Kannan gang, believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable by indictment under an Act of Parliament. Being unable to appeal to the IAD, the appellant applied for judicial review to the Federal Court.\n\nOn judicial review, the Federal Court Judge upheld the Board’s determination regarding the appellant’s inadmissibility to Canada. That decision is the subject of this appeal.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-4", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The provisions in the IRPA most relevant to this appeal are as follows. Objectives – Immigration Objet en matière d’immigration 3.(1) The objectives of this Act with respect to immigration are 3.1 En matière d’immigration, la présente loi a pour objet: … […] (h) to protect the health and safety of Canadians and to maintain the security of Canadian society; h) de protéger la santé et la sécurité publiques et de garantir la sécurité de la société canadienne; (i) to promote international justice and security by fostering respect for human rights and by denying access to Canadian territory to persons who are criminals or security risks; and i) de promouvoir, à l’échelle internationale, la justice et la sécurité par le respect des droits de la personne et l’interdiction de territoire aux personnes qui sont des criminels ou constituent un danger pour la sécurité; … […] Rules of interpretation Interprétation 33. The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33. Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-5", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 13", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "… […] Organized criminality Activités de criminalité organisée 37.(1) A permanent resident or a foreign national is inadmissible on grounds of organized criminality for 37.(1) Emportent interdiction de territoire pour criminalité organisée les faits suivants : (a) being a member of an organization that is believed on reasonable grounds to be or to have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment, or in furtherance of the commission of an offence outside Canada that, if committed in Canada, would constitute such an offence, or engaging in activity that is part of such a pattern; or a) être membre d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction à une loi fédérale punissable par mise en accusation ou de la perpétration, hors du Canada, d’une infraction qui, commise au Canada, constituerait une telle infraction, ou se livrer à des activités faisant partie d’un tel plan; (b) engaging, in the context of transnational crime, in activities such as people smuggling, trafficking in persons or laundering of money or other proceeds of crime. b) se livrer, dans le cadre de la criminalité transnationale, à des activités telles le passage de clandestins, le trafic de personnes ou le recyclage des produits de la criminalité.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-6", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 13–16", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The following provisions govern subsection (1): (2) Les dispositions suivantes régissent l’application du paragraphe (1): (a) subsection (1) does not apply in the case of a permanent resident or a foreign national who satisfies the Minister that their presence in Canada would not be detrimental to the national interest; and (a) les faits visés n’emportent pas interdiction de territoire pour le résident permanent ou l’étranger qui convainc le ministre que sa présence au Canada ne serait nullement préjudiciable à l’intérêt national; (b) paragraph (1) (a) does not lead to a determination of inadmissibility by reason of the fact that the permanent resident or foreign national entered Canada with the assistance of a person who is involved in organized criminal activity. (b) les faits visés à l’alinéa (1)a) n’emportent pas interdiction de territoire pour la seule raison que le résident permanent ou l’étranger est entré au Canada en ayant recours à une personne qui se livre aux activités qui y sont visées.\n\nThe first certified question concerns whether the words in paragraph 37(1)(a) “being a member” include a person who was not a member of a criminal organization at the time of the inadmissibility report, but was a member before that time.\n\nThis requires the Court to assess the proper interpretation of the language in paragraph 37(1)(a) of the IRPA. The interpretation of statutes is generally considered to be a question of law; therefore, the standard of review to be applied on this appeal of the case is correctness: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraph 8.\n\nThe Federal Court Judge held that paragraph 37(1)(a) includes a person who was a member of a criminal organization before the inadmissibility report. For the following reasons, I agree.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-7", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 17", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, this meaning is consistent with the wording of the former Act. Paragraph 19(1)(c.2) of the former Act specifically referred to those who “are or were members”. It read: Inadmissible persons Personnes non admissibles 19.(1) No person shall be granted admission who is a member of any of the following classes: 19.(1) Les personnes suivantes appartiennent à une catégorie non admissible : …. […] (c.2) persons who there are reasonable grounds to believe are on were members of an organization that there are reasonable grounds to believe is or was engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of any offence under the Criminal Code or Controlled Drugs and substances Act that my be punishable by way of indictment or in the commission outside Canada of an act or omission that, if committed in Canada, would constitute such an offence, except persons who have satisfied the Minister that their admission would not be detrimental to the national interest; c.2) celles dont il y a des motifs raisonnables de croire qu’elles sont ou ont été membres d’une organisation dont il y a des motifs raisonnables de croire qu’elle se livre ou s’est livrée à des activités faisant partie d’un plan d’activités criminelles organisées par plusieurs personnes agissant de concert en vue de la perpétration d’une infraction au Code criminel ou à la Loi réglementant certaines drogues et autres substances qui peut être punissable par mise en accusation ou a commis à l’étranger un fait—acte ou omission—qui, s’il avait été commis au Canada, constituerait une telle infraction, sauf si elles convainquent le ministre que leur admission ne serait nullement préjudiciable à l’intérêt national;", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-8", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 18–20", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "One of Parliament’s objectives when enacting the IRPA was to simplify the former Act. Section 33 does just that: it reduces the necessary repetition of the phrases denoting past, present and future membership in the former Act by establishing a “rule of interpretation” that permits a decision maker to consider past, present and future facts when making a determination as to inadmissibility.\n\nIf one were to interpret paragraph 37(1)(a) as including only present membership in an organization, it would, in effect, render section 33 redundant. The Board said (at page 49), and I concur, that consideration of evidence of a person’s history and future plans would be relevant to the question of whether a person is currently a member of an organization described in section 37, even without codification to such effect in legislation.\n\nIn my view, Parliament must have intended section 33 to have some meaning. The language of section 33 is clear that a present finding of inadmissibility, which is a legal determination, may be based on a conclusion of fact as to an individual’s past membership in an organization. In other words, the appellant’s past membership in the A.K. Kannan gang, a factual determination, can be the basis for a legal inadmissibility finding in the present.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-9", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 21–22", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, this interpretation is consistent with the purpose of the inadmissibly provisions and the IRPA as a whole. The inadmissibility provisions have, as one of their objectives, the protection of the safety of Canadian society. They facilitate the removal of permanent residents who constitute a risk to Canadian society on the basis of their conduct, whether it be criminality, organized criminality, human or international rights violations, or terrorism. If one were to interpret “being a member” as including only present membership in an organization described in paragraph 37(1)(a), this would have a contrary effect, by narrowing the scope of persons who are declared inadmissible, thereby increasing the potential risk to Canadian safety.\n\nThird, if the Court were to interpret “being a member” as including only current members, it would lead to absurd results that could not have be intended by Parliament. This would mean that sections 34 (terrorism/security), 35 (crimes against humanity), and 37 (organized criminality) of the IRPA, all of which use the wording “being a member” or “being a prescribed senior official,” would only refer to current circumstances.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-10", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 23–24", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Such an interpretation would also mean that a former member of the Nazi party in Germany could not be found inadmissible because the Nazi party no longer exists, so that he is no longer a member. It would mean that a member of an international terrorist organization could renounce his or her membership immediately prior to making a refugee claim, and would not be inadmissible because he is not a current member of a terrorist organization. It would also mean that a person who spends 10 years as a member of an organization engaged in criminal activities within Canada could withdraw from the organization before being reported under the IRPA and avoid a finding of inadmissibility.\n\nFourth, the jurisprudence supports this interpretation. In Zündel (Re) (2005), 251 D.L.R. (4th) 511 (F.C.), the Federal Court addressed whether past wrongdoing can constitute the basis for inadmissibility under section 34 of the IRPA. Pursuant to paragraph 34(1)(f), a person can be found to be inadmissible for “being a member of an organization that there are reasonable grounds to believe engages, has engaged or will engage in acts referred to in paragraph (a) [espionage], (b) [subversion by force of any government] or (c) [terrorism].” Blais J. held (at paragraph 18) that an admissibility determination under section 34 cannot be restricted to present circumstances. Pursuant to section 33, “the [Minister] can provide evidence or information of past, present or anticipated future circumstances of . . . inadmissibility on security grounds.”", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-11", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 25", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "More recently, in Charkaoui (Re), [2005] 2 F.C.R. 299 (F.C.A.), appeal to the Supreme Court of Canada [reversed on (2007), 358 N.R. 1, 2007 SCC 9] granted, this Court was concerned with whether there were reasonable grounds to believe that Charkaoui was inadmissible pursuant to section 34 on account of being a member of a terrorist organization. Décary and Létourneau JJ.A. stated (at paragraph105): “inadmissibility must be based, under section 33 of the IRPA, on the Minister’s reasonable grounds to believe that the acts or omissions referred to in sections 34 to 37 have occurred, are occurring or, if preventive considerations are involved, may occur.”", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-12", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 26–27", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "This issue was also addressed by Russell J. in the decision of Hussenu v. Canada (Minister of Citizenship and Immigration) (2004), 247 F.T.R. 137 (F.C.). There, Hussenu argued that he was not inadmissible under paragraph 34(1)(f) of the IRPA because he had ceased to be a member of the Eritrean Liberation Front immediately prior to making a refugee claim. The Court denied the appeal, stating (at paragraph 39): Section 34(1)(f) of IRPA does use the words “being a Member of an organization . . .,” but s. 33 specifically provides that “ . . . facts that constitute inadmissibility under ss. 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts from which there are reasonable grounds to believe that they have occurred, are occurring or may occur.” [emphasis added]. If the Applicant’s argument concerning s. 34(1)(f) were correct on this issue, then s. 34 would not apply to a terrorist who resigns his or her membership in a terrorist organization immediately prior to making a refugee claim. It could not have been Parliament’s intent to exclude such an applicant from the purview of s. 34(1)(f) and s. 33 makes this position clear.\n\nThe appellant submits that an interpretation of paragraph 37(1)(a) as including past members would not permit absolution for persons who were associated with criminal organizations in the past, realized that it is not what they wanted to do with their life, and genuinely withdrew without having engaged in criminal activity.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-13", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 28–31", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "This argument is not persuasive. Subsection 37(2) of the IRPA is intended to alleviate the harshness of the inadmissibility rule where, as the appellant suggests, there is evidence of a person’s genuine withdrawal from membership. Provided the permanent resident can satisfy the Minister that his or her presence in Canada would not be detrimental to the national interest, the inadmissibility rule in paragraph 37(1)(a) could be overcome.\n\nBased on all of the above, I answer the first certified question in the affirmative.\n\nThe second certified question in this appeal requires the Court to determine what constitutes an “organization” within the meaning of paragraph 37(1)(a), and in particular, does the A.K. Kannan gang fit within that meaning?\n\nThe answer to the first part of the question, the proper meaning of the word “organization” in view of paragraph 37(1)(a), is a legal determination and is to be reviewed on a correctness standard: Housen, at paragraph 8.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-14", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 32–33", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The answer to the second part of the question, whether the A.K. Kannan gang falls within the meaning of “organization” for the purposes of paragraph 37(1)(a), is a mixed question of fact and law; it involves applying the legal standard to the facts and evidence in each particular case. In Housen, at paragraph 36, the Supreme Court said: Matters of mixed fact law lie along a spectrum. Where, for instance, an error. . .can be attributed to the application of an incorrect standard, a failure to consider a required element of a legal test, or similar error in principle, such an error can be characterized as an error of law, subject to a standard of correctness. . . . Where the legal principle is not readily extractible, then the matter is one of “mixed law and fact” and is subject to a more stringent standard. The general rule, as stated in Jaegli Enterprises, supra, is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.\n\nUnless this Court finds that the Judge incorrectly characterized the law as regards paragraph 37(1)(a), the Judge’s decision that the A.K. Kannan gang falls within the meaning of “organization” will not be reviewed in the absence of a palpable and overriding error: Housen, at paragraph 10.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-15", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 34–35", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The word “organization” is not defined in the IRPA. The appellant submits that the lack of a statutory definition creates a danger of courts over‑reaching to cover the broadest range of criminal action that may appear to be taken in association with others. According to the appellant, a precise definition is required given the serious consequences of inadmissibility and the fact that membership alone constitutes inadmissibility. In reliance on international law and criminal jurisprudence, the appellant argues that for the purpose of paragraph 37(1)(a), an “organization” must, at minimum, have a common criminal purpose and a sufficient structure to allow the benefits of its illegal conduct to be shared.\n\nIn contrast with this submission, in the case of Canada (Minister of Citizenship and Immigration) v. Singh (1998), 151 F.T.R. 101 (F.C.T.D.), Rothstein J., as he then was, held that the term “member” (of an organization), found in subparagraph 19(1)(f)(iii) [as am. by S.C. 1992, c. 49, s. 11] of the former Act, dealing with terrorism and espionage threats to Canadian security, was to be given an unrestricted and broad interpretation. He said, at paragraph 52: The context in immigration legislation is public safety and national security, the most serious concerns of government. It is trite to say that terrorist organizations do not issue membership cards. There is no formal test for membership and members are not easily identifiable. . . . I think it is obvious that Parliament intended the term “member” to be given an unrestricted and broad interpretation. I find no support for the view that a person is not a member as contemplated by the provision if he or she became a member after the organization stopped engaging in terrorism.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-16", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 36–37", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the same “unrestricted and broad” interpretation should be given to the word “organization” as it is used in paragraph 37(1)(a). The IRPA signifies an intention, above all, to prioritize the security of Canadians. This was confirmed by the Supreme Court of Canada in the decision of Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), [2005] 2 S.C.R. 539, at paragraph 10: The objectives as expressed in the IRPA indicate an intent to prioritize security. This objective is given effect by preventing the entry of applicants with criminal records, by removing applicants with such records from Canada, and by emphasizing the obligation of permanent residents to behave lawfully while in Canada. . . . the objectives of the IRPA and its provisions concerning permanent resident, communicate a strong desire to treat criminals and security threats less leniently than under the former Act.\n\nParagraph 37(1)(a) appears to be an attempt to tackle organized crime, in recognition of the fact that non‑citizen members of criminal organizations are as grave a threat as individuals who are convicted of serious criminal offences. It enables deportation of members of criminal organizations who avoid convictions as individuals but may nevertheless be dangerous.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-17", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 38", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Recent jurisprudence supports this interpretation. In Thanaratnam v. Canada (Minister of Citizenship and Immigration), [2004] 3 F.C.R. 301 (F.C.), reversed on other grounds, [2006] 1 F.C.R. 474 (F.C.A.), O’Reilly J. took into account various factors when he concluded that two Tamil gangs (one of which was the A.K. Kannan gang at issue here) were “organizations” within the meaning of paragraph 37(1)(a) of the IRPA. In his opinion, the two Tamil groups had “some characteristics of an organization”, namely “identity, leadership, a loose hierarchy and a basic organizational structure” (at paragraph 31). The factors listed in Thanaratnam, as well as other factors, such as an occupied territory or regular meeting locations, both factors considered by the Board, are helpful when making a determination under paragraph 37(1)(a), but no one of them is essential.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-18", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 39–40", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "These criminal organizations do not usually have formal structures like corporations or associations that have charters, by-laws or constitutions. They are usually rather loosely and informally structured, which structures vary dramatically. Looseness and informality in the structure of a group should not thwart the purpose of the IRPA. It is, therefore, necessary to adopt a rather flexible approach in assessing whether the attributes of a particular group meet the requirements of the IRPA given their varied, changing and clandestine character. It is, therefore, important to evaluate the various factors applied by O’Reilly J. and other similar factors that may assist to determine whether the essential attributes of an organization are present in the circumstances. Such an interpretation of “organization” allows the Board some flexibility in determining whether, in light of the evidence and facts before it, a group may be properly characterized as such for the purposes of paragraph 37(1)(a).\n\nWith respect to the appellant’s argument that criminal jurisprudence and international instruments should inform the meaning of a criminal “organization”, I disagree. Although these materials can be helpful as interpretive aides, they are not directly applicable in the immigration context. Parliament deliberately chose not to adopt the definition of “criminal organization” as it appears in subsection 467.1(1) [as enacted by S.C. 1997, c. 23, s. 11; 2001, s. 32, s. 27] of the Criminal Code, R.S.C., 1985, c. C‑46. Nor did it adopt the definition of “organized criminal group” in the United Nations Convention against Transnational Organized Crime [November 2000, GA Res. 55/25] (the Convention). The wording in paragraph 37(1)(a) is different, because its purpose is different.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-19", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 41–45", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the Judge, as did the Board, correctly considered the legislation and applied the law as set out in Thanaratnam, in the interpretation of the term “organization.” Accordingly, I find no error of law relating to the first part of the certified question.\n\nWith respect to the second part of the certified question, the appellant argues that the Judge committed a palpable and overriding error when he upheld the Board’s decision that the A.K. Kannan gang is an organization within the meaning of paragraph 37(1)(a). I disagree.\n\nThe Board considered the evidence before it and found that there were six relevant indicia of “organization” for the A.K. Kannan gang in this case: leadership, an elementary form of hierarchy, the giving of instructions from a leader, a specific and identifying name, an occupied territory, and chosen locations for meeting within their specified territory in Ontario. The Board concluded that all of the evidence taken together was sufficient to conclude that A.K. Kannan was an organization, and the Judge, considering the evidence related to most of the same factors, upheld this decision.\n\nThe appellant submits that the Board ignored his testimony that there was no organization and ignored a report prepared for the Canadian Tamil Youth Development Centre (the CTYDC report), which characterizes Tamil gangs as loose associations with no organizational structure.\n\nThe Board concluded that the appellant was not a credible witness, and gave detailed reasons for its conclusion. Further, the Board considered the CTYDC report and discussed it within its reasons. The Board was entitled to weigh the report and give it little effect in the context of the conflicting evidence. The appellant has failed to show that the Board’s decision was perverse or irrational.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-20", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 46–50", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accordingly, the Judge did not commit any palpable and overriding error in upholding the Board’s finding that the A.K. Kannan gang is an “organization” within the meaning of paragraph 37(1)(a) of the IRPA.\n\nParagraph 37(1)(a) of the IRPA applies where an organization of which one is a member is believed on reasonable grounds to be or have been engaged in activity that is part of a pattern of criminal activity planned and organized by a number of persons acting in concert in furtherance of the commission of an offence punishable under an Act of Parliament by way of indictment.\n\nThe appellant argues that the Judge erred when he held that the Board was entitled to give weight to the police reports of criminal activity, unsubstantiated by conviction, as evidence of his, or the organization’s, involvement in criminal activity.\n\nIn admissibility hearings the Board is not bound by the strict rules of evidence. Once the tribunal determines that the evidence is credible and trustworthy then it is admissible, and the question of how the evidence was obtained becomes relevant merely as to the weight attached to the evidence: section 173 of the IRPA.\n\nThe jurisprudence of this Court indicates that evidence surrounding withdrawn or dismissed charges can be taken into consideration at an immigration hearing. However, such charges cannot be used, in and of themselves, as evidence of an individual’s criminality: see, for example, Veerasingam v. Canada (Minister of Citizenship and Immigration), 2004 FC 1661, at paragraph 11; Thuraisingam v. Canada (Minister of Citizenship and Immigration), (2004) 251 F.T.R. 282 (F.C.), at paragraph 35.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-21", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 51–53", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this regard, I agree with the Judge that the Board did not rely on the police source evidence as evidence of the appellant’s wrongdoing. Rather, it considered the circumstances underlying the charges and contemplated charges—including the frequency of the appellant’s interactions with the police and the fact that others involved were often gang members—to establish that there are “reasonable grounds to believe,” a standard that is lower than the civil standard, that the A.K. Kannan gang engages in the type of activity set out in paragraph 37(1)(a).\n\nThe appellant also submits that the police source evidence in this case is not credible and reliable evidence. Many of the police reports were made before a proper investigation, and were not supported by the testimony of the police officers and witnesses that were involved. Further, the appellant argues that the evidence hinted that the police lacked objectivity; that their view of the appellant was biased.\n\nIn this regard, I find that the Board considered the police source evidence credible and trustworthy in the circumstances of the case, and such a decision is entirely within its discretion. The Board is uniquely situated to assess credibility of evidence in an inadmissibility hearing; credibility determinations are entitled to considerable deference upon judicial review and cannot be overturned unless they are perverse, capricious or made without regard to the evidence: Federal Courts Act, R.S.C., 1985, c. F‑7 [section 1 (as am. by S.C. 2002, c. 8, s. 14)], paragraph 18.1(4)(d) [as enacted by S.C. 1990, c. 8, s. 5; 2002, c. 8, s. 27].", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-22", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "paras 54–55", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant has not demonstrated that the Board’s findings, or the Judge’s acceptance of those facts, were perverse or capricious. Therefore, I find no reviewable error in respect of this issue.\n\nI am satisfied that the Judge correctly interpreted paragraph 37(1)(a) of the IRPA when reviewing the Board’s findings. I would answer the certified questions as follows: (a) The phrase “being a member of an organization” in paragraph 37(1)(a) of the IRPA includes a person who was not a member at the time of the reporting, but was a member before that time. (b) The word “organization”, as it is used in paragraph 37(1)(a) of the IRPA, is to be given a broad and unrestricted interpretation. While no precise definition can be established here, the factors listed by O’Reilly J. in Thanaratnam, by the Board member, and possibly others, are helpful when making a determination, but no one of them is an essential element. The structure of criminal organizations is varied, and the Board must be given flexibility to evaluate all of the evidence in the light of the legislative purpose of the IRPA to prioritize security in deciding whether a group is an organization for the purpose of paragraph 37(1)(a). The A.K. Kannan gang, as found by the Board and the Judge, fits within this meaning.", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-35313-23", + "doc_type": "caselaw", + "act_code": "2006 FCA 326", + "act_short": "Sittampalam", + "act_name": "Sittampalam v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Sittampalam v. Canada (Citizenship and Immigration), 2006 FCA 326", + "marginal_note": "para 56", + "heading": "Organized criminality under IRPA s. 37(1)(a); the broad meaning of a criminal organization", + "part": "Federal Court of Appeal", + "division": "", + "text": "For 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 NAMES OF COUNSEL AND SOLICITORS OF RECORD Docket: A-473-05 (APPEAL FROM AN ORDER OF THE HOUNOURABLE MR. JUSTICE HUGHES, FEDERAL COURT, DATED SEPTEMBER 22, 2005, IMM-8912-04) DOCKET: A-473-05 STYLE OF CAUSE: JOTHIRAVI SITTAMPALAM v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: September 25, 2006 REASONS FOR JUDGMENT BY: linden j.a. CONCURRED IN BY: NADON J.A. SEXTON J.A. DATED: OCTOBER 12, 2006 APPEARANCES: Barbara Jackman Leigh Salsberg For The Appellant Meilka Visnic Alison Engel-Yan For The Respondents SOLICITORS OF RECORD: Jackman & Associates Toronto, Ontario For The Appellant John H. Sims, Q.C. Deputy Attorney General of Canada For The Respondents", + "current_to": "2006-10-12", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/35313/index.do" + }, + { + "id": "fca-31607-1", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 1–3", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal on a certified question from a decision of Gauthier J. dated October 21, 2003. The certified question is: Are the detention reviews made pursuant to s. 57(2) and 58 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, hearings de novo and does the detained person bear the burden of establishing that he/she is not a danger to the Canadian public or not a flight risk at such reviews? FACTS\n\nThe facts may be briefly summarized. The respondent was arrested on October 18, 2001, on an immigration warrant on the grounds that he was a danger to the public because he was one of the leaders of the VVT, a Tamil gang operating in Toronto. His detention was reviewed under the provisions of section 103 of the Immigration Act, R.S.C. 1985, c. I-2 (the former Act) and, after it came into force, sections 57 and 58 of the Immigration and Refugee Protection Act (the new Act). At his first five detention reviews, the respondent's continued detention was ordered. On November 5, 2002, his detention was reviewed by Mr. V. Tumir, a member of the Immigration Division of the Immigration and Refugee Board, who ordered him released on conditions. The Minister applied for judicial review and, in the interim, obtained a stay until the next detention review was completed.\n\nThe next detention review was conducted by Mr. A. Iozzo of the Immigration Division, who on March 18, 2003, confirmed the findings of Mr. Tumir and ordered that the respondent be released. The Minister obtained a stay of that order and sought judicial review. It was this judicial review that was the subject matter of the Order of Gauthier J. of October 21, 2003, and which gives rise to this appeal. ISSUES", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-2", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister raises two issues. He first says that detention reviews under the new Act are not de novo and that the detained person bears the burden of proving that previous decisions to detain should be set aside. He then says that Mr. Iozzo made errors of law and patently unreasonable errors of fact. Therefore, he says, Gauthier J. erred in not overturning Mr. Iozzo's decision. RELEVANT PROVISIONS Immigration and Refugee Protection Act 57. (1) Within 48 hours after a permanent resident or a foreign national is taken into detention, or without delay afterward, the Immigration Division must review the reasons for the continued detention. (2) At least once during the seven days following the review under subsection (1), and at least once during each 30-day period following each previous review, the Immigration Division must review the reasons for the continued detention. ... 57. (1) La section contrôle les motifs justifiant le maintien en détention dans les quarante-huit heures suivant le début de celle-ci, ou dans les meilleurs délais par la suite. (2) Par la suite, il y a un nouveau contrôle de ces motifs au moins une fois dans les sept jours suivant le premier contrôle, puis au moins tous les trente jours suivant le contrôle précédent. ... 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); ...", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-3", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(2) The Immigration Division may order the detention of a permanent resident or a foreign national if it is satisfied that the permanent resident or the foreign national is the subject of an examination or an admissibility hearing or is subject to a removal order and that the permanent resident or the foreign national is a danger to the public or is unlikely to appear for examination, an admissibility hearing or removal from Canada. ... 58. (1) La section prononce la mise en liberté du résident permanent ou de l'étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants_: a) le résident permanent ou l'étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l'étranger se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d'une mesure de renvoi en vertu du paragraphe 44(2); ... (2) La section peut ordonner la mise en détention du résident permanent ou de l'étranger sur preuve qu'il fait l'objet d'un contrôle, d'une enquête ou d'une mesure de renvoi et soit qu'il constitue un danger pour la sécurité publique, soit qu'il se soustraira vraisemblablement au contrôle, à l'enquête ou au renvoi. ... Immigration and Refugee Protection Regulations, SOR/2002-227 47(2) A person who posts a guarantee must ... (b) be able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed; and ... 47(2) La personne qui fournit la garantie d'exécution doit : ... b) être capable de faire en sorte que la personne ou le groupe de personnes visé par la garantie respecte les conditions imposées; ... 244.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-4", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the purposes of Division 6 of Part 1 of the Act, the factors set out in this Part shall be taken into consideration when assessing whether a person (a) is unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2) of the Act; (b) is a danger to the public; ... 244. Pour l'application de la section 6 de la partie 1 de la Loi, les critères prévus à la présente partie doivent être pris en compte lors de l'appréciation : a) du risque que l'intéressé se soustraie vraisemblablement au contrôle, à l'enquête, au renvoi ou à une procédure pouvant mener à la prise, par le ministre, d'une mesure de renvoi en vertu du paragraphe 44(2) de la Loi; b) du danger que constitue l'intéressé pour la sécurité publique; ... 245. For the purposes of paragraph 244(a), the factors are the following: ... (c) voluntary compliance with any previously required appearance at an immigration or criminal proceeding; (d) previous compliance with any conditions imposed in respect of entry, release or a stay of removal; (e) any previous avoidance of examination or escape from custody, or any previous attempt to do so; ... (g) the existence of strong ties to a community in Canada. 245. Pour l'application de l'alinéa 244a), les critères sont les suivants : ... c) le fait de s'être conformé librement à l'obligation de comparaître lors d'une instance en immigration ou d'une instance criminelle; d) le fait de s'être conformé aux conditions imposées à l'égard de son entrée, de sa mise en liberté ou du sursis à son renvoi; e) le fait de s'être dérobé au contrôle ou de s'être évadé d'un lieu de détention, ou toute tentative à cet égard; ...", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-5", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "g) l'appartenance réelle à une collectivité au Canada. 246. For the purposes of paragraph 244(b), the factors are the following: ... (b) association with a criminal organization within the meaning of subsection 121(2) of the Act; ... (d) conviction in Canada under an Act of Parliament for ... (ii) an offence involving violence or weapons; ... 246. Pour l'application de l'alinéa 244b), les critères sont les suivants : ... b) l'association à une organisation criminelle au sens du paragraphe 121(2) de la Loi; ... d) la déclaration de culpabilité au Canada, en vertu d'une loi fédérale, quant à l'une des infractions suivantes : ... (ii) infraction commise avec violence ou des armes; ... 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. 248. S'il est constaté qu'il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu'une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l'existence d'éléments permettant l'évaluation de la durée probable de la détention et, dans l'affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère ou de l'intéressé; e) l'existence de solutions de rechange à la détention.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-6", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Immigration Act 103. (1) The Deputy Minister or a senior immigration officer may issue a warrant for the arrest and detention of any person where (a) an examination or inquiry is to be held, a decision is to be made pursuant to subsection 27(4) or a removal order or conditional removal order has been made with respect to the person; and (b) in the opinion of the Deputy Minister or that officer, there are reasonable grounds to believe that the person poses a danger to the public or would not appear for the examination, inquiry or proceeding in relation to the decision or for removal from Canada. ... (6) Where any person is detained pursuant to this Act for an examination, inquiry or removal and the examination, inquiry or removal does not take place within forty-eight hours after that person is first placed in detention, or where a decision has not been made pursuant to subsection 27(4) within that period, that person shall be brought before an adjudicator forthwith and the reasons for the continued detention shall be reviewed, and thereafter that person shall be brought before an adjudicator at least once during the seven days immediately following the expiration of the forty-eight hour period and thereafter at least once during each thirty day period following each previous review, at which times the reasons for continued detention shall be reviewed.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-7", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 4", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(7) Where an adjudicator who conducts a review pursuant to subsection (6) is satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal, the adjudicator shall order that the person be released from detention subject to such terms and conditions as the adjudicator deems appropriate in the circumstances, including the payment of a security deposit or the posting of a performance bond. ... 103. (1) Le sous-ministre ou l'agent principal peut lancer un mandat d'arrestation contre toute personne qui doit faire l'objet d'un interrogatoire, d'une enquête ou d'une décision de l'agent principal aux termes du paragraphe 27(4), ou qui est frappée par une mesure de renvoi ou de renvoi conditionnel, lorsqu'il croit, pour des motifs raisonnables, qu'elle constitue une menace pour la sécurité publique ou qu'elle ne comparaîtra pas, ou n'obtempérera pas à la mesure de renvoi. ... (6) Si l'interrogatoire, l'enquête ou le renvoi aux fins desquels il est gardé n'ont pas lieu dans les quarante-huit heures, ou si la décision n'est pas prise aux termes du paragraphe 27(4) dans ce délai, l'intéressé est amené, dès l'expiration de ce délai, devant un arbitre pour examen des motifs qui pourraient justifier une prolongation de sa garde; par la suite, il comparat devant un arbitre aux mêmes fins au moins une fois: a)dans la période de sept jours qui suit l'expiration de ce delai; b)tous les trente jours après l'examen effectué pendant cette période.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-8", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 4–6", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "(7) S'il est convaincu qu'il ne constitue vraisemblablement pas une menace pour la sécurité publique et qu'il ne se dérobera vraisemblablement pas à l'interrogatoire, à l'enquête ou au renvoi, l'arbitre chargé de l'examen prévu au paragraphe (6) ordonne la mise en liberté de l'intéressé, aux conditions qu'il juge indiquées en l'espèce, notamment la fourniture d'un cautionnement ou d'une garantie de bonne exécution. ... THE CERTIFIED QUESTION\n\nThere are two issues that must be decided: (1) whether detention reviews are hearings de novo; and (2) who bears the burden of proof in a detention review. Nature of the Hearing\n\nI think it is important to first clarify the use of the term de novo. Strictly speaking, a de novo review is a review in which an entirely fresh record is developed and no regard at all is had to a prior decision (see Bayside Drive-in Ltd. v. M.N.R. (1997), 218 N.R. 150 at 156 (F.C.A.); Molson Breweries v. John Labatt Ltd., [2000] 3 F.C. 145 at 166 (C.A.)). This is not what occurs in a detention review. In Canada (Minister of Citizenship and Immigration) v. Lai, [2001] 3 F.C. 326 at 334 (T.D.), Campbell J. held that in a detention review, \"all existing factors relating to custody must be taken into consideration, including the reasons for previous detention orders being made.\" Although Campbell J. was dealing with the former Act, there is no reason why this ruling should not apply to the new Act. Therefore, de novo review is not a precisely accurate way of describing the kind of review hearing held under sections 57 and 58 of the new Act.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-9", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 7–8", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the other hand, I also can not accept the submission made by the Minister in his factum that the findings of previous Members should not be interfered with in the absence of new evidence. In considering detention reviews held under the former Act, MacKay J. of the Trial Division (as it then was) held that: ... the concern, at the time of the review, is whether there are reasons to satisfy the adjudicator that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal. It is not sufficient, in my opinion, that the adjudicator proceed ... by accepting the decisions of previous adjudicators and considering primarily what may have happened since the last previous decision (Salilar v. Canada (Minister of Citizenship and Immigration), [1995] 3 F.C. 150 at 159 (T.D.)).\n\nNothing in the new sections 57 and 58 indicates that MacKay J.'s reasoning should not continue to apply to detention review hearings held under the new Act. As Adjudicators did under the former Act, the Immigration Division reviews \"the reasons for the continued detention\" [emphasis added]. Nor does the new Act draw any distinction between the first and subsequent detention reviews or impose any requirement for new evidence to be presented. Rather, at each hearing, the Member must decide afresh whether continued detention is warranted. The Treatment of Prior Decisions", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-10", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 9–12", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The question then is what weight must be given, in subsequent reviews, to previous decisions. As became clear in oral argument, the Minister does not say that prior decisions to detain an individual are binding at subsequent detention reviews. Rather, the Minister says that a Member must set out clear and compelling reasons in order to depart from previous decisions to detain an individual.\n\nDetention review decisions are the kind of essentially fact-based decision to which deference is usually shown. While, as discussed above, prior decisions are not binding on a Member, I agree with the Minister that if a Member chooses to depart from prior decisions to detain, clear and compelling reasons for doing so must be set out. There are good reasons for requiring such clear and compelling reasons.\n\nCredibility of the individual concerned and of witnesses is often an issue. Where a prior decision maker had the opportunity to hear from witnesses, observe their demeanour and assess their credibility, the subsequent decision maker must give a clear explanation of why the prior decision maker's assessment of the evidence does not justify continued detention. For example, the admission of relevant new evidence would be a valid basis for departing from a prior decision to detain. Alternatively, a reassessment of the prior evidence based on new arguments may also be sufficient reason to depart from a prior decision.\n\nThe best way for the Member to provide clear and compelling reasons would be to expressly explain what has given rise to the changed opinion, i.e. explaining what the former decision stated and why the current Member disagrees.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-11", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 13–15", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, even if the Member does not explicitly state why he or she has come to a different conclusion than the previous Member, his or her reasons for doing so may be implicit in the subsequent decision. What would be unacceptable would be a cursory decision which does not advert to the prior reasons for detention in any meaningful way. Burden of Proof\n\nWhen determining who bears the burden of proof at a detention review hearing, it is important to remember that sections 57 and 58 allow persons to be detained for potentially lengthy, if not indefinite, periods of time, without having been charged with, let alone having been convicted of any crime. As a result, detention decisions must be made with section 7 Charter considerations in mind (Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at 225-231 (T.D.)).\n\nSubsection 103(7) of the former Act provided that an adjudicator shall order release if \"satisfied that the person in detention is not likely to pose a danger to the public and is likely to appear for an examination, inquiry or removal.\" Under that provision, Campbell J. held that \"the initial onus of proving continued detention is warranted rests with the proposer of such an order\", i.e. the Minister (Lai at 334). If anything, this holding applies even more strongly to section 58 which provides that \"the Immigration Division shall order the release of the permanent resident or foreign national unless it is satisfied\" that one of the listed conditions is met [emphasis added]. I therefore agree with Gauthier J. that it is the Minister who must establish, on a balance of probabilities, that the respondent is a danger to the public if he wants the detention to continue.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-12", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 16–17", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention. However, once the Minister has made out a prima facie case for continued detention, the individual must lead some evidence or risk continued detention. The Minister may establish a prima facie cases in a variety of ways, including reliance on reasons for prior detentions. As Gauthier J. put it in her reasons at paragraph 75: ... at the beginning of the hearing, the burden was always on the shoulder of the proponent of the detention order, the Minister, but then this burden could quickly shift to the respondent if previous decisions to continue the detention were found compelling or persuasive by the adjudicator presiding [sic] the review. MR. IOZZO'S DECISION\n\nThe Minister has attempted to point out a number of inconsistencies in Mr. Iozzo's reasons. For the most part, the Minister is simply arguing that Mr. Iozzo did not properly assess the reliability of the evidence before him. However, as Gauthier J. determined, the Minister has not demonstrated that these factual findings are patently unreasonable.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-13", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 18", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nonetheless, the Minister argues that Mr. Iozzo failed to give clear and compelling reasons to show why he departed from the prior decisions to detain the respondent. In his decision, Mr. Iozzo stated: The decision to be made at this review is a decision de novo, where the previous decisions are considered, and given due deference and respect; ultimately, a new decision must be made on the basis of that member's judgment and assessment of the evidence. ... Deference must be shown to previous decisions, but \"error\" cannot be continued for the sake of consistency.10 In analyzing the records of previous reviews, I have pondered the reasons for detention and the reasons for release provided by previous members. For this review to have any significance, however, I have to make an honest decision on my assessment of all the evidence [Emphasis in original]. 10Cogent reasons must of course be provided by the decision maker justifying deviation from decisions of colleagues.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-14", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 19", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "From this statement, it seems apparent that Mr. Iozzo paid appropriate regard to the prior decisions. Mr. Iozzo's disagreement and the reasons for it are clearly implicit in his decision. On page 11 of his reasons, Mr. Iozzo points out that all of the previous members had recognized that there were credibility problems associated with the various witness statements and that even Minister's counsel had conceded before him that there were contradictions and inconsistencies in those statements. He then cites numerous examples of such inconsistencies. He concludes by stating at pages 14-15 that \"at the end of the day, apart [sic] the Court documents entered into evidence and the undisputed facts, I was left with a whole box of material containing statements by untrustworthy people contradicting one another's statements and contradicting their own statements.\"", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-15", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 20", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where Mr. Iozzo differed from the decisions of the Members who had ordered the respondent's continued detention was his unwillingness to accept the proposition that \"non-credible statements can become credible by their number, or that a lie many times told by different people becomes the truth\" (page 15). He therefore implicitly rejected the \"common thread\" approach on which the previous decisions were based (see M.C.I. v. Thanabalasingham (18 March 2002), Toronto 0003-A1-02365 at 9 and 19 (I.R.B. (Adj. Div.)), Ms. Gratton; M.C.I. v. Thanabalasingham (28 May 2002), Milton 0003-A1-02365 at 3 (I.R.B. (Adj. Div.)), Ms. Simmie (Adjudication File Summary of Detention Review Hearing); and M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 92 (I.R.B. (Imm. Div.)), Mr. Murrant). Having regard to the need to come to a fresh decision at each detention review, albeit one that pays proper attention to the previous decisions, this conclusion is one which was open to Mr. Iozzo and which Gauthier J. was correct not to disturb.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-16", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 21–22", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister also argues that Mr. Iozzo erred in law in his treatment of the respondent's previous convictions. The Minister says that Mr. Iozzo incorrectly held that previous convictions alone could not support a finding that a detainee is a danger to the public. I agree with Gauthier J. that: Mr. Iozzo could have described in more detail his reasoning, but his failure to do so does not constitute a reviewable error when it is clear from his decision itself that he had considered all the evidence relating to the context of those convictions and, nevertheless, declared himself not satisfied that they alone could support a detention order (paragraph 124). Mr. Iozzo did not hold that previous convictions alone could never support a danger finding; rather, he held that these particular convictions could not do so in the circumstances of this case. I agree with Gauthier J. that such a finding was reasonably open to him.\n\nFinally, the Minister argues that Mr. Iozzo erred in approving proposed guarantors because he did not consider whether they were \"able to ensure that the person or group of persons in respect of whom the guarantee is required will comply with the conditions imposed\" as required by paragraph 47(2)(b) of the Immigration and Refugee Protection Regulations and because the proposed guarantors would not be able to assert sufficient control over the respondent.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-17", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "paras 23–24", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although Mr. Iozzo did not expressly refer to paragraph 47(2)(b), he did consider whether the proposed guarantors would be adequately able to control the respondent if he were released. He agreed with Mr. Tumir and Mr. Murrant who had concluded that substantial bonds would be sufficient to address this concern. Mr. Tumir (M.C.I. v. Thanabalasingham (5 November 2002), Milton 0003-A1-02365 at 25-26 (I.R.B. (Imm. Div.))) and Mr. Murrant (M.C.I. v. Thanabalasingham (12 August 2002), Milton 0003-A1-02365 at 90-91 (I.R.B. (Imm. Div.))) had already specifically addressed and rejected this concern. It was not unreasonable for Mr. Iozzo to rely on their findings on this point. CONCLUSION\n\nThe reasons of Gauthier J. are logical and clear. I am fully satisfied that she correctly applied the proper standards of review to Mr. Iozzo's findings and that she correctly interpreted the relevant law. I would dismiss the appeal. I would answer the certified question as follows: At each detention review made pursuant to sections 57 and 58 of the Immigration Refugee Protection Act, S.C. 2001, c. 27, the Immigration Division must come to a fresh conclusion whether the detained person should continue to be detained. Although an evidentiary burden might shift to the detainee once the Minister has established a prima facie case, the Minister always bears the ultimate burden of establishing that the detained person is a danger to the Canadian public or is a flight risk at such reviews. However, previous decisions to detain the individual must be considered at subsequent reviews and the Immigration Division must give clear and compelling reasons for departing from previous decisions.", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-31607-18", + "doc_type": "caselaw", + "act_code": "2004 FCA 4", + "act_short": "Thanabalasingham", + "act_name": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham", + "section": "", + "citation": "Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4", + "marginal_note": "para 25", + "heading": "Immigration detention review; the Minister's onus and the weight owed to prior detention decisions", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister is at liberty, at any time, to re-arrest the respondent and secure his detention and continued detention on the basis of adequate evidence. If the Minister is of the opinion that the respondent is a danger to the public, he should take the steps that are available to him under the new Act to secure the respondent's detention. \"Marshall Rothstein\" J.A. \"I agree A.J. Stone J.A.\" \"I agree K. Sharlow J.A.\" FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-479-03 STYLE OF CAUSE: The Minister of Citizenship and Immigration v. Kaileshan Thanabalasingham PLACE OF HEARING: Ottawa, Ontario DATES OF HEARING: December 9, 2003 REASONS FOR JUDGMENT BY: ROTHSTEIN J.A. CONCURRED IN BY: STONE J.A. SHARLOW J.A. DATED: January 9, 2004 APPEARANCES: Mr. Donald MacIntosh and Mr. Greg George FOR THE APPELLANT Ms. Barbara Jackman FOR THE RESPONDENT SOLICITORS OF RECORD: Mr. Morris Rosenberg Deputy Attorney General of Canada Toronto, Ontario FOR THE APPELLANT Barbara Jackman Toronto, Ontario FOR THE RESPONDENT", + "current_to": "2004-01-09", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/31607/index.do" + }, + { + "id": "fca-305100-1", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 1–3", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This appeal is from the judgment of Crampton C.J. of the Federal Court (2016 FC 1199), granting five consolidated applications by the Minister for judicial review, setting aside the five corresponding orders issued by members of the Immigration Division of the Immigration and Refugee Board releasing the appellant from immigration detention on conditions, and remitting the question of release or continued detention to Member Cook of the ID, who made the most recent of the five orders.\n\nIn both their written and their oral submissions the parties focused on the application judge’s decision with respect to the order of Member Cook, which superseded the four earlier orders. It is appropriate to do the same in these reasons.\n\nHowever, my doing so leads me reluctantly but inescapably to the conclusion that this Court lacks jurisdiction to decide the appeal. The question as certified by the application judge, on which this Court’s jurisdiction depends, does not in my respectful view meet the well-established criteria for certification, and reformulation of the question would not render it compliant. I say “reluctantly” because the appeal was well and fully argued on the merits, and because underlying the certified question may well be a serious legal question of general importance that, as the application judge suggested, calls for further judicial consideration. But the question as framed is not dispositive of the appeal as it was argued, so that deciding the appeal would take the Court outside the role that Parliament envisaged for it in immigration matters. I see no alternative therefore but to dismiss the appeal.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-2", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 4–6", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In explaining why I reach this conclusion, I will first briefly outline the scheme of the Immigration and Refugee Protection Act, S.C. 2001, c. 27, as it relates to removal orders, detention and release. Next, I will set out the relevant background, addressing the circumstances relating to the appellant’s detention, Member Cook’s decision, and the decision on judicial review. I will then consider in more detail the requirements that a certified question must meet and how in my view those requirements are not met in this case. I appreciate that all of this is a rather lengthy prelude to a decision that ultimately does not address the merits of the appeal, but the context may nonetheless prove helpful in grounding the disposition that I propose.\n\nThe Immigration and Refugee Protection Act establishes a framework for immigration to Canada and the grant of refugee protection. The objectives of the IRPA are set out in subsection 3(1). By paragraphs 3(1)(h) and 3(1)(i), they include the protection of public health and safety and the security of Canadian society and the promotion of international justice and security by fostering respect for human rights and denying access to Canadian territory to persons who are criminals or security risks.\n\nBy sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, violation of human or international rights, serious criminality, criminality or organized criminality. A removal order is enforceable if it has come into force and is not stayed (subsection 48(1)). If a removal order is enforceable, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (subsection 48(2)).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-3", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 7–9", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Act authorizes the arrest and detention of a permanent resident or foreign national who there are reasonable grounds to believe is inadmissible and a danger to the public or unlikely to appear for removal from Canada or at a proceeding that could lead to removal (subsection 55(1)).\n\nWithin 48 hours of arrest, the Immigration Division of the Immigration and Refugee Board is required to review the reasons for detention (subsection 57(1)). Following this initial review, the ID must conduct additional reviews within seven days and at least once every 30 days thereafter (subsection 57(2)).\n\nIn a detention review, the ID must assess whether there are grounds for detention: whether, among other things, the detainee is a danger to the public, a flight risk, or a foreign national whose identity has not been established. Unless it is satisfied that one or more of the specified grounds is made out, it must order the detainee’s release (subsection 58(1)). By paragraph 245(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227, the assessment whether there is a flight risk includes consideration of the detainee’s voluntary compliance with any previous departure order and, therefore, compliance with subsection 48(1) of the IRPA, which as set out above requires a foreign national to leave Canada immediately as soon as a removal order becomes enforceable.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-4", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 10–12", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "By subsection 247(1) of the Regulations, in assessing whether the identity ground is established, the ID must consider among other things the detainee’s cooperation, including whether the detainee provided or assisted the Department of Citizenship and Immigration in obtaining evidence of identity, or provided his or her date and place of birth and parents’ names. Subsection 16(3) of the Act authorizes an immigration officer to require or obtain from a detainee any evidence that may be used to establish identity.\n\nIf any of the specified grounds of detention are established, the ID is obliged to consider the factors set out in section 248 of the Regulations before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department or the person concerned; and (e) the existence of alternatives to detention. These factors, which originated in the decision in Sahin v. Canada (Minister of Citizenship and Immigration), [1995] 1 F.C. 214 at p. 231, 85 F.T.R. 99 at para. 31, were incorporated into the Regulations in 2002.\n\nIf the ID orders release, it may impose any conditions that it considers necessary (IRPA, subsection 58(3)). The person concerned may apply to vary these conditions on the basis that they are no longer necessary to ensure compliance with the Act (Tursunbayev v. Canada (Public Safety and Emergency Preparedness), 2014 FC 5, 21 Imm. L.R. (4th) 302 at para. 31).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-5", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 13–14", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant came to Canada in 1994, and was granted refugee status in 1996. He asserts that he is Jacob Damiany Lunyamila, a citizen of Rwanda, born there in September 1976. However, his identity has not been established. Among other things, he has no Rwandan identity documents, and the file associated with his refugee claim was destroyed years ago in accordance with standard Immigration and Refugee Board document retention policies.\n\nIn the period from January 1999 to June 2013, Mr. Lunyamila was charged with 94 criminal offences and convicted of 54. It appears that a number of the convictions were connected to alcohol addiction and mental health issues. In July 2012, Mr. Lunyamila was found inadmissible for criminality under paragraph 36(2)(a) of the IRPA. A deportation order was issued against him in August 2012. After a conviction for sexual assault, he was also found inadmissible for serious criminality under paragraph 36(1)(a) of the IRPA. In May 2014, a danger opinion was issued under paragraph 115(2)(a) of the IRPA, declaring that he was a danger to the public and that the risk to the Canadian public outweighed any risk he would face on return to Rwanda and any humanitarian and compassionate considerations. Leave to seek judicial review was denied.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-6", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 15–17", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Lunyamila was arrested and detained under section 55 of the IRPA in June 2013. His detention was initially continued on the grounds that he was both a flight risk and a danger to the public. On the second 30 day review, he was ordered released on conditions. The conditions included a requirement that he live at a specified addiction rehabilitation facility, complete its three month program and abide by its rules and regulations. However, he left the facility after two days and was rearrested. He has remained in detention since September 2013.\n\nUntil January 2016, successive 30 day reviews resulted in orders for continued detention, at first on flight risk and danger grounds, and then on identity grounds as well. However, beginning in January 2016 ID members issued a series of orders for Mr. Lunyamila’s release. Each of these orders was stayed, and two of them – those issued in January and February 2016 – were set aside by the Federal Court on judicial review (2016 FC 289). A further five release orders, including the order made by Member Cook, were the subject of the consolidated applications that led to this appeal.\n\nFollowing the issuance of the danger opinion in May 2014, the CBSA took steps to deport Mr. Lunyamila to Rwanda. Since Mr. Lunyamila did not have a Rwandan passport or other travel document, the Canada Border Services Agency contacted the Rwandan High Commission to ascertain the requirements for him to obtain one. The CBSA was informed that the requirements included providing certified copies of Rwandan identity documents and a statutory declaration affirming a willingness to return to Rwanda.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-7", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 18–21", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Lunyamila had stated that he did not have the required identity documents. Despite ten separate requests by CBSA officers – in June, July, November and December 2014, and February, May, July, August, November and December 2015 – he also refused to sign the required statutory declaration. In response to several of these requests, he stated, in effect, that he would never sign and would never cooperate with his deportation.\n\nIn November 2013 and in 2014, the CBSA received information suggesting that Mr. Lunyamila was actually a person with a different name and birth date who was a citizen of Tanzania. However, the CBSA’s investigation of this information led to a different individual, and the possibility that Mr. Lunyamila was Tanzanian was not pursued further at that time.\n\nThe CBSA recommenced its investigation in February 2015 when it received further information linking Mr. Lunyamila to Tanzania. It explored retaining a private investigator, made inquiries of the Tanzanian police, and arranged for a linguistic analysis, which was conducted in May 2016. The analysis concluded that it was “very likely” that Mr. Lunyamila’s linguistic background was Tanzanian, and “very unlikely” that it was Rwandan. The CBSA also sent fingerprints for analysis by Tanzanian authorities, and arranged an interview of Mr. Lunyamila by Tanzanian consular officials in September 2016.\n\nMr. Lunyamila has cooperated to some degree with this investigation, including by participating in the linguistic analysis, but he has also provided contradictory and nonsensical information in response to inquiries about his connection to Tanzania.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-8", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 22–24", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In September 2016, Member Cook made an order for Mr. Lunyamila’s release from detention, subject to conditions. Although the member was satisfied that all three grounds for continued detention asserted by the Minister – danger, flight risk and identity – were made out, he found that the risks could be sufficiently mitigated by the conditions that he imposed.\n\nIn concluding that Mr. Lunyamila remained “very much a flight risk”, and that it was very unlikely that he would appear voluntarily for removal if released, the member observed that Mr. Lunyamila had done everything in his power to prevent removal to Rwanda, including refusing to sign the declaration required for a Rwandan-issued travel document. Mr. Lunyamila seemed to have figured out, the member stated, that without his cooperation in signing the declaration the CBSA could not remove him.\n\nWith respect to identity, the member stated that “the Minister was making reasonable efforts to establish [Mr. Lunyamila’s] identity.” He noted that the Minister was “undertaking a legitimate investigation […] that [was] capable of uncovering significant evidence,” and stated that it would be improper for him to speculate on what the investigation might uncover. He found the Minister’s efforts to confirm whether Mr. Lunyamila was Tanzanian, while “not perfect,” were reasonable.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-9", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 25–26", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Having concluded that the three grounds for continued detention were established, Member Cook then turned to the factors set out in section 248 of the Regulations. He found that the first factor, the grounds for detention, weighed in favour of continuing detention. Mr. Lunyamila had been detained because he was a danger to the public, he was a flight risk, and his identity could not be established. The member stated that he had given this factor significant weight, since the danger factor alone was justification for a lengthy detention.\n\nThe member analyzed the second and third factors – the length of time in detention and whether the length of time that detention is likely to continue can be ascertained – together. He found that detention for three years amounted to lengthy detention, and that the length of Mr. Lunyamila’s further detention could not reasonably be anticipated. He concluded that these factors favoured release.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-10", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 27–28", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Member Cook noted that the reason for both the lengthy detention and the inability to ascertain the duration of continued detention was the same: the Minister did not have a valid travel document that would permit Mr. Lunyamila’s removal. His case was now “at a stalemate”: the Minister required Mr. Lunyamila’s cooperation to have any prospect of obtaining a Rwandan travel document, but he had refused to cooperate and had stated that he would never cooperate. Although the member acknowledged that Mr. Lunyamila’s cooperation in signing a declaration could lead to a valid travel document, he also noted that cooperation would not guarantee removal because Mr. Lunyamila also lacked the identity documents that Rwanda appeared to require. The Minister was unable to state whether Rwandan authorities would waive this requirement. As for the potential removal to Tanzania, the member found there was no way to reasonably anticipate whether Mr. Lunyamila was actually Tanzanian and how long a removal to Tanzania might take. There was therefore no timeline for the anticipated conclusion of the immigration process: Mr. Lunyamila’s “detention moving forward [was] indefinite” (2016 FC 1199 at paragraph 102).\n\nThe member determined that responsibility for the lengthy detention and uncertainty as to the length of future detention should be apportioned equally to both parties. He assigned a large portion of responsibility for the delay to Mr. Lunyamila. He stated that Mr. Lunyamila’s consistent refusal to cooperate in signing the declaration had stalled his removal at the travel document acquisition stage since 2014, and suggested that the detention might have already ended had he cooperated.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-11", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 29–30", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the member also found that the Minister must share the responsibility. Despite the “stalemate” and knowledge that Mr. Lunyamila was not prepared to sign the declaration, the Minister had not undertaken alternative measures to remove him. The member acknowledged that there might not in fact be any alternatives. He also acknowledged that the Minister was now focused on Tanzania as a possible alternate destination for removal. However, he was critical of the Minister’s delay in pursuing the possibility of Tanzanian identity when information to this effect first came to light in 2013. The member accordingly found that the factor of delay and lack of diligence was neutral and favored neither continued detention nor release.\n\nThe member then turned to the last factor, alternatives to detention. He stated that any alternatives must “on balance […] have a likelihood of mitigating the grounds for detention that have been established.” He expressed his belief that if Mr. Lunyamila agreed to comply with all of the conditions he set out, “the grounds for detention [could] be mitigated to a degree whereby [his] release pending removal can be manageable” (2016 FC 1199 at paragraph 104).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-12", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 31–32", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Member Cook set out a total of nine conditions. Condition 1 was that prior to release Mr. Lunyamila sign the declaration requested by Rwanda. Member Cook rejected the suggestion made by another ID member in an earlier review that this condition would amount to “disguised detention” given Mr. Lunyamila’s past refusals to sign. Member Cook reasoned that because Mr. Lunyamila was a criminal and a danger to the public, this condition and Mr. Lunyamila’s deportation were consistent with the immigration objectives, set out in paragraphs 3(1)(h) and (i) of the IRPA, of protecting public health and safety, maintaining the security of Canadian society, and denying criminals access to Canadian society. The condition was also consistent with the obligation imposed by subsection 48(2) of the Act on Mr. Lunyamila to leave Canada immediately, and the obligation on the CBSA to enforce the removal order as soon as possible. The member described Mr. Lunyamila’s non-cooperation as “completely contrary to what is required by Canadian law” (2016 FC 1199 at paragraph 109).\n\nThe other conditions that Member Cook imposed included cooperation with an interview with Tanzanian officials and with any additional CBSA investigation into his identity, acceptance prior to release in a residential drug and alcohol treatment facility and completion of its program, on completion of that program making efforts to enrol in a community-based violence prevention and anger management program and completing the program once enrolled, mandatory reporting to the CBSA, abstention from alcohol, and compliance with any physician-prescribed treatment program.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-13", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 33–36", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In his decision on judicial review, the application judge accepted the parties’ agreement that the appropriate standard of review was reasonableness. He considered the order made by Member Cook after having concluded that he would set aside as unreasonable the other four orders that were the subject of the consolidated applications. He determined that Member Cook’s order was also unreasonable.\n\nThe application judge framed the fundamental issue raised by the applications as “how to resolve the tension between […] an immigration detainee’s refusal to cooperate with a validly issued order for removal from Canada, and […] the length of detention and uncertainty regarding the duration of future detention that result, in whole or in part, from that refusal” (2016 FC 1199 at paragraph 1).\n\nHe expressed his resolution of this tension as follows at paragraph 2: where such a refusal has the result of impeding any steps that may realistically contribute in a meaningful way to effecting the removal of a detainee who has been designated to be a danger to the public, the tension must be resolved in favour of continued detention. The same is true where it has been determined that a detainee is unlikely to appear for removal from Canada.\n\nThe application judge reasoned that if it were otherwise, a detainee who was a danger or a flight risk could by the refusal to cooperate produce or contribute to producing a “stalemate,” resulting in release and the infliction on the public of the associated risk. This would allow detainees to “take the law into [their] own hands” (2016 FC 1199 at paragraph 4), in a manner that Parliament could not have intended.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-14", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 37–38", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In considering one of the other release orders that was the subject of the consolidated applications, the application judge addressed the suggestion made by the ID member who had granted the order that there was a conflict between two lines of cases in the Federal Court – one holding that indefinite detention cannot be treated as a determinative factor in a detention review and the other, that length of detention should be given substantial weight in the balancing process under section 248. He characterized these cases as consistent to the extent that they all properly saw it as necessary to consider and reasonably weigh all of the section 248 factors. But, he stated (at paragraph 85), “where the detainee is a danger to the public, the scheme of the IRPA and the Regulations contemplates that substantial weight should be given to maintaining the detainee in detention.”\n\nThe application judge went on in his discussion of the Federal Court case law to address a further tension identified by the member – that between cases in which the Court had set aside ID release decisions as unreasonable where the detainee’s non-cooperation was the sole cause of the indefinite nature of the detention, and those in which the Court had found unreasonableness in the failure of the member to consider factors other than the detainee’s non-cooperation. He stated (at paragraph 95) that, in his view, “the scheme of the IRPA and the Regulations […] requires resolving a stalemate that has been produced by the detainee’s failure to fully cooperate with the Minister’s removal efforts, in favour of continued detention.”", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-15", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 39–40", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge found Member Cook’s decision unreasonable in several respects. First, there was an inconsistency between Member Cook’s conclusion that Mr. Lunyamila’s detention had become indefinite and the member’s own findings as to the prospects of removing Mr. Lunyamila to Rwanda or Tanzania. The member had also recognized that a large portion of the delay was attributable to Mr. Lunyamila’s refusal to cooperate, and that his non-cooperation had, in addition, contributed significantly to the uncertainty of the timing of removal. It was therefore unreasonable for the member to rely on delay and uncertainty to find that the detention had become indefinite, and then to treat these factors as favouring release: this amounted to giving Mr. Lunyamila credit for factors for which he had been largely responsible.\n\nThe application judge also found unreasonable the member’s decision to give a neutral weighting to the fourth section 248 factor, relating to delay and lack of diligence. He accepted that the Minister could have been more diligent in making efforts to remove Mr. Lunyamila to Rwanda, but observed that Mr. Lunyamila’s non-cooperation had substantially undermined those efforts. This factor should therefore, the application judge stated, have weighed strongly in favour of continued detention. The application judge found further unreasonableness in Member Cook’s determination that the Minister should have done more sooner to pursue the possibility of removal to Tanzania.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-16", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 41–42", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The application judge went on to consider the conditions of release set out by Member Cook. The application judge applauded Member Cook for including the pre-release condition that Mr. Lunyamila sign the declaration required by Rwanda. Permitting Mr. Lunyamila to obtain release while continuing to refuse to cooperate would, the application judge stated (at paragraph 119), be “tantamount to letting him take the law into his own hands, and dictate which laws of Canada he will follow and which ones he will not follow.” However, he agreed with the Minister that the conditions taken together were unreasonable because they did not adequately address Mr. Lunyamila’s violent tendencies and his flight risk. He stated (at paragraph 45) that to be reasonable in the circumstances of Mr. Lunyamila’s case, the conditions would have to “virtually eliminate” the risks that he presented.\n\nHaving concluded that the conditions of release taken as a whole were unreasonable, the application judge set aside Member Cook’s order, along with the other four orders that were subjects of the consolidated applications. Based on Member Cook’s recent familiarity with Mr. Lunyamila’s situation and his understanding of the statutory scheme and many of the relevant legal principles, the application judge remitted the matter back to Member Cook for reconsideration in accordance with his reasons.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-17", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 43–44", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Neither party proposed a question for certification under paragraph 74(d) of the IRPA. Both were of the view that the case was grounded in its particular facts and therefore presented no question of general importance. However, the application judge saw the differences of view in the Federal Court’s case law as giving rise to a question of general importance warranting this Court’s consideration. He therefore sought the parties’ comments on a question that he proposed. The parties maintained their position that the proposed question was not suitable for certification, because the appropriate balancing of the factors in section 248 will vary depending on the circumstances of each case. The application judge nonetheless certified the following question (at paragraph 137): Can a person who has been detained for removal from Canada pursuant to a valid removal order and who has been found either to be a danger to the public or unlikely to appear for his removal from Canada, avoid continued detention by (i) refusing to take steps that may realistically contribute in a meaningful way to effecting such removal, and then (ii) relying on the length of his detention to argue that his release from detention is warranted, assuming there has been no significant change in other factors to be considered in the assessment contemplated by s. 248 of the Immigration and Refugee Protection Regulations?\n\nBy paragraph 74(d) of the IRPA, this Court has jurisdiction to hear an appeal from the judgment of the Federal Court on an application for judicial review with respect to any matter under the Act only if, in rendering judgment, the Federal Court “certifies that a serious question of general importance is involved and states the question.”", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-18", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 45–46", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As this Court observed in Varela v. Canada (Minister of Citizenship and Immigration), 2009 FCA 145, [2010] 1 F.C.R. 129 at para. 23, this provision “fits within a larger scheme designed to ensure that a claimant’s right to seek the intervention of the courts is not invoked lightly, and that such intervention, when justified, is timely.” Other elements of the scheme include the requirement in section 72 of the IRPA to obtain leave before pursuing an application for judicial review in the Federal Court.\n\nThis Court recently reiterated in Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130 at para. 36, the criteria for certification. The question must be a serious question that is dispositive of the appeal, transcends the interests of the parties and raises an issue of broad significance or general importance. This means that the question must have been dealt with by the Federal Court and must arise from the case itself rather than merely from the way in which the Federal Court disposed of the application. An issue that need not be decided cannot ground a properly certified question (Lai v. Canada (Public Safety and Emergency Preparedness), 2015 FCA 21, 29 Imm. L.R. (4th) 211 at para. 10). Nor will a question that is in the nature of a reference or whose answer turns on the unique facts of the case be properly certified (Mudrak v. Canada (Citizenship and Immigration), 2016 FCA 178, 485 N.R. 186 at paras. 15, 35).", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-19", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 47–48", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Despite these requirements, this Court has considered that it is not constrained by the precise language of the certified question, and may reformulate the question to capture the real legal issue presented (Tretsetsang v. Canada (Citizenship and Immigration), 2016 FCA 175, 398 D.L.R. (4th) 685 at para. 5 per Rennie J.A. (dissenting, but not on this point); Ezokola v. Canada (Citizenship and Immigration), 2011 FCA 224, [2011] 3 F.C.R. 417 at paras. 40-44, reversed without comment on the point, Ezokola v. Canada (Citizenship and Immigration), 2013 SCC 40, [2013] 2 S.C.R. 678). Any reformulated question must, of course, also meet the criteria for a properly certified question.\n\nAt the hearing of the appeal, the Court raised with counsel for both parties concerns about the certified question as framed (reproduced at paragraph 43 above). These included concerns that the question might be in the nature of a “straw person,” in that it would admit of only one reasonable answer. However, the Court also recognized that circumstances like those in this case might give rise to a serious legal issue of general importance, and proposed possible alternative formulations for comment. Counsel were content that the Court try to reformulate the question. The Court decided that it would proceed with the hearing on the merits, leaving the possible reformulation of the certified question to be considered further during the Court’s deliberations.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-20", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 49–50", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With the benefit of further consideration, I find myself unable to conclude that the question as certified meets the criteria for certification, or that the question can be reformulated so as to address its deficiencies. The fundamental problem as I see it is that the question does not arise from the facts of this case as it developed. The question asks, in essence, whether an immigration detainee can avoid continued detention by failing to cooperate with removal. But Member Cook’s order did not permit Mr. Lunyamila to do so. Rather, Member Cook’s order expressly imposed as a pre-release condition the requirement that Mr. Lunyamila do what he has so far refused to do – sign the declaration requested by Rwanda.\n\nCounsel’s arguments before us were directed to the reasonableness of this order, including all of its conditions. Counsel for Mr. Lunyamila argued that the order as a whole struck a careful and factually supported balance, that the application judge showed insufficient deference in finding it unreasonable, and that it should not have been set aside. Counsel for the Minister submitted that the application judge was right to find the order unreasonable, but for reasons unrelated to the pre-release condition – a condition which, as noted above, the application judge said he applauded. In sum, therefore, neither party took issue with the pre-release condition of cooperation.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-21", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 51–52", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In light of my appreciation of the issue raised by the application judge’s formulation and counsel’s comments, I considered proposing that the certified question be reformulated along the following lines: In a review under section 57 of the Immigration and Refugee Protection Act of the detention of a person against whom a removal order has been made, is the Immigration Division of the Immigration and Refugee Board entitled to rely on the factors set out in paragraphs 248(b) and (c) of the Immigration and Refugee Protection Regulations (“the length of time in detention” and “whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time”) as factors favouring release where the length of time in detention and the length of time that detention is likely to continue are attributable in whole or in part to the failure of the detainee to cooperate in his or her removal from Canada?\n\nHowever, given the terms of Member Cook’s order and the positions of the parties, it would not be necessary to decide this question either in order to decide the appeal. The reformulation could also be regarded as deficient on the basis that it is a question whose answer would turn on the unique facts of each case – for example, on the nature and extent of the non-cooperation – or that it would transform this appeal into a reference. I therefore came to the view that reformulation would not be appropriate.", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-305100-22", + "doc_type": "caselaw", + "act_code": "2018 FCA 22", + "act_short": "Lunyamila", + "act_name": "Lunyamila v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Lunyamila v. Canada (Public Safety and Emergency Preparedness), 2018 FCA 22", + "marginal_note": "paras 53–54", + "heading": "Immigration detention where a detainee will not cooperate with their own removal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I conclude that the certified question is not sufficient to give this Court jurisdiction to decide the appeal, which must therefore be dismissed. I do not see “special reasons” within the meaning of rule 22 of the Federal Courts Citizenship, Immigration and Refugee Protection Rules, SOR/93-22, that would warrant an award of costs.\n\nI would dismiss the appeal without costs. “J.B. Laskin” J.A. “I agree. David Stratas J.A.” “I agree. J. Woods J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-444-16 STYLE OF CAUSE: JACOB DAMIANY LUNYAMILA v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: October 30, 2017 REASONS FOR JUDGMENT BY: LASKIN J.A. CONCURRED IN BY: STRATAS J.A. WOODS J.A. DATED: january 19, 2018 APPEARANCES: Anthony Navaneelan For The Appellant John Provart Susan Gans For The Respondent SOLICITORS OF RECORD: REFUGEE LAW OFFICE Legal Aid Ontario Toronto, Ontario For The Appellant Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent", + "current_to": "2018-01-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/305100/index.do" + }, + { + "id": "fca-483607-1", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 1–3", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Enforcement of removal orders by the Canada Border Services Agency (CBSA) is an everyday occurrence in this country. In most cases, removal proceeds in an expeditious manner. But sometimes it does not. The person to be removed may not report. The receiving country may delay or refuse to issue the necessary travel documents. Sometimes the political situation in the receiving country is unstable, or removal carries an unacceptable risk of human rights violations. Significant delays can result, placing the person subject to removal in an administrative and legal limbo. The person has no right to remain in Canada but Canada has no ability to effect the removal.\n\nFor certain foreign nationals, there may also be reasonable grounds to believe that they pose a danger to the public or are a flight risk and may not report to the CBSA for removal. In such cases, the Immigration Division (ID) of the Immigration and Refugee Board of Canada may order their arrest and detention pending removal (Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 55 (IRPA)).\n\nOver the course of a year, over 5,000 persons, inadmissible to Canada for various reasons, are held in immigration detention, either in immigration holding centres operated by the CBSA or in provincial correctional institutions. The vast majority of detentions are of short or intermittent duration—far less than 100 days. But some detainees are held for much longer. The appellant, Alvin John Brown, is an example of the latter.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-2", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 4–6", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court has described the facts surrounding Mr. Brown’s stay in Canada and eventual removal (2017 FC 710, per Fothergill J. at paras. 9-18). He was found to be inadmissible to Canada on the basis of a series of criminal convictions. At the end of his term of imprisonment he was ordered detained pending removal because he was both a danger to the public and a flight risk. Notwithstanding the increasing length of Mr. Brown’s detention, at each of his subsequent detention reviews the ID ordered that he continue to be detained.\n\nMr. Brown was held in provincial correctional institutions in Ontario from September 2011 until his deportation to Jamaica five years later in September 2016. Despite repeated and continuous efforts, the CBSA was unable to obtain a travel document for Mr. Brown from the Jamaican High Commission during this time.\n\nIn the Federal Court, Mr. Brown, together with the End Immigration Detention Network, a third party with public interest standing, challenged the constitutionality of the immigration detention regime established under sections 57 and 58 of the IRPA and sections 244 to 248 of the Immigration and Refugee Protection Regulations, S.O.R./2002-227 (Regulations). There, they contended that the regime violates sections 7, 9, 12 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-3", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 7–10", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Although Mr. Brown had been removed from Canada by the time of the hearing, no one asserted the objection of mootness. Nevertheless, the Federal Court considered mootness and, after reviewing the jurisprudence, exercised its discretion to hear the application in the public interest. No one raised mootness in this Court and there is no reason on this record to second-guess the Federal Court’s exercise of discretion.\n\nThe Federal Court dismissed the appellants’ Charter challenge. They now appeal to this Court on the basis of the following certified question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?\n\nOnce a question is certified, all issues that bear upon the disposition of the appeal are at large (Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at para. 12 (Baker); Mahjoub v. Canada (Minister of Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344 at para. 50; Lewis v. Canada (Public Safety and Emergency Preparedness), 2017 FCA 130, [2018] 2 F.C.R. 229 at para. 37).\n\nIn this Court, the appellants renew their constitutional challenge. They are supported by two interveners: the Canadian Association of Refugee Lawyers and the Canadian Centre for International Justice. The interveners advocate for specific procedural protections for immigration detainees including mandatory release dates, early disclosure by the Minister of Public Safety of any evidence relevant to a detainee’s case, and the imposition of an onus on the Minister of Public Safety to establish, with strong supporting reasons, that continued detention is warranted.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-4", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 11–13", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Casting a shadow on the appellants’ constitutional challenge is the Supreme Court of Canada decision, Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350 (Charkaoui). There, the Supreme Court prescribed the process and protections required to ensure that lengthy and indeterminate detention is consistent with detainees’ rights under sections 7 and 12 of the Charter.\n\nThe Supreme Court’s conclusions in Charkaoui are set forth in paragraph 96: The s. 12 issue of cruel and unusual treatment is intertwined with s. 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty. It is not the detention itself, or even its length, that is objectionable. Detention itself is never pleasant, but it is only cruel and unusual in the legal sense if it violates accepted norms of treatment. Denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrarily indefinite and support the argument that it is cruel or unusual […]\n\nElsewhere, at paragraph 105 of Charkaoui, the Supreme Court recognized that immigration detention may have to be or may practically end up being indeterminate: “[i]t is thus clear that while the IRPA in principle imposes detention only pending deportation, it may in fact permit lengthy and indeterminate detention or lengthy periods subject to onerous release conditions.” It rejected the detainee’s argument that after 5 years his detention had become indefinite and, thus, unconstitutional for that reason.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-5", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 14–16", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court held that extended periods of detention under the IRPA do not violate the Charter if they are accompanied by regular review of the reasons for detention, the length of detention, the reasons for the delay in removal, the anticipated future length of detention and the availability of alternatives to detention such as release on conditions (at paras. 110-117).\n\nBut the Supreme Court also foresaw that cases could arise where a particular detention was not Charter compliant. In these circumstances, the Court concluded that, although prolonged detention under the regime established by the IRPA was constitutional, “[…] this does not preclude the possibility of a judge concluding at a certain point that a particular detention constitutes cruel and unusual treatment or is inconsistent with the principles of fundamental justice, and therefore infringes the Charter in a manner that is remediable under s. 24(1) of the Charter” (at para. 123).\n\nCharkaoui stands in the way of the appellants’ argument that lengthy or indeterminate detention is per se unconstitutional. In response, the appellants launch a frontal attack on Charkaoui.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-6", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 17–19", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants contend that where removal is no longer reasonably foreseeable, release is the only constitutionally compliant outcome, and the failure of the IRPA to expressly require release “in these circumstances” renders the scheme constitutionally deficient. Analogizing to the principles expressed in R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631 (Jordan) the appellants contend that their section 7 and 9 Charter rights can only be protected by judicially mandated limits on the length of detention or, alternatively, that the scheme should be declared unconstitutional under section 52. They say that Charkaoui must be read in light of the principles expressed in Jordan.\n\nThe appellants advance a second attack on the detention scheme. The appellants say the fact that the legislation grants a discretionary power that may be exercised in an unconstitutional manner renders the enabling provision unconstitutional. The appellants contend that for the detention provisions of the IRPA to pass constitutional muster, it must be impossible for the ID to order detention when there is no reasonable prospect of removal.\n\nThe appellants and interveners also argue that the detention scheme offends section 7 of the Charter because it places an onus on detainees to justify why they should be released. As well, the appellants and interveners challenge the constitutionality of detention orders under section 12 of the Charter because the ID has no control over the location and conditions of detention. They also raise a procedural fairness challenge based on the limited disclosure by the Minister during detention hearings.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-7", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 20–21", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The arguments challenging the detention scheme fail and so I would dismiss the appeal. However, as will be seen, ID members conducting detention reviews and judges sitting in judicial review, must consider Charter and administrative law standards. Although the appellants’ challenge to the validity of the sections fails, many of their arguments are vindicated by what is said in these reasons concerning what judges conducting detention reviews must consider.\n\nAll Charter analysis begins with an informed understanding of the legislation in question. The legislation must first be interpreted according to the accepted principles of statutory interpretation (Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 26; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21). And in examining the effects of the legislation, as is necessary when applying the Charter, we must understand how it operates against the backdrop of accepted common law and administrative law principles (see, e.g., Ontario v. Canadian Pacific Ltd., [1995] 2 S.C.R. 1031, 125 D.L.R. (4th) 385 at 1049; R. v. Khawaja, 2012 SCC 69, [2012] 3 S.C.R. 555 at paras. 43-45; R. v. Levkovic, 2013 SCC 25, [2013] 2 S.C.R. 204 at para. 78; Ruth Sullivan, Statutory Interpretation, 3rd ed. (Toronto: Irwin Law, 2016) at 315).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-8", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 22–24", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "When the detention provisions are read in light of their text, context and purpose, there is no infringement of sections 7, 9 or 12 of the Charter. The detention scheme possesses the same hallmarks of constitutionality that allowed the Supreme Court in Charkaoui to find that extended periods of detention under the IRPA’s security certificate detention scheme did not contravene sections 7 and 12 of the Charter. These hallmarks include robust and timely review of the continued need for detention, the ability to “consider terms and conditions that would neutralize the danger” and the “fashion[ing of] conditions that would neutralize the risk of danger upon release” together with power to order release if satisfied that the need for detention no longer exists (Charkaoui at paras. 117, 119-123).\n\nCharkaoui is also clear guidance from the Supreme Court, along with many other leading authorities, that the recourse against an improper exercise of discretion resulting in the over-holding of a detainee is an application to quash that exercise of discretion under administrative law principles and section 24 of the Charter, not to strike down the section under section 52 of the Constitution Act, 1982.\n\nTwo opening observations are in order.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-9", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 25–26", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, this appeal involves nothing more than applying settled principles to specific legislation and a specific evidentiary record. There is no real dispute between the parties on the settled principles. Thus, I will not elaborate on either the general content of section 7 (see, e.g., Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, 69 Imm. L.R. (4th) 297 at paras. 76-90; Kreishan v. Canada (Citizenship and Immigration), 2019 FCA 223, 438 D.L.R. (4th) 148 at paras. 78-87) or the two-stage process to be followed when applying section 7 (Ewert v. Canada, 2018 SCC 30, [2018] 2 S.C.R. 165 at para. 68 and Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 at para. 58). It is sufficient to say that Mr. Brown’s Charter rights are engaged, and that as a foreign national in Canada he has standing to challenge this legislative scheme using sections 7, 9 and 12 of the Charter (Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, 17 D.L.R. (4th) 422 at 201-202; see also R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754 at para. 23 (Appulonappa)). Nor is there any dispute over the scope and content of sections 7, 9 and 12.\n\nThe second observation relates to the Supreme Court decision in Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29, 433 D.L.R. (4th) 381 (Chhina), rendered while this appeal was under reserve and on which the parties made additional written submissions. A comment is required on the relevance of Chhina to the issues in this appeal.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-10", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 27–29", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The constitutionality of the immigration detention scheme was not in issue before the Supreme Court in Chhina. The focus of that case was the availability of habeas corpus as an alternative remedy to judicial review to determine the legality of a detention order. The case did not require a full interpretation of the IRPA detention provisions and none was done. The questions raised here have not been answered. Nor did the Supreme Court in Chhina reverse or cast any doubt on Charkaoui, which directly applies to the question before this Court.\n\nUnder sections 34 to 37 of the IRPA, a foreign national may be inadmissible and liable to removal on grounds of security, a violation of human or international rights, serious criminality or organized criminality. Unless the removal order is stayed by the Federal Court, the foreign national against whom it is made “must leave Canada immediately and the order must be enforced as soon as possible” (IRPA, s. 48(2)).\n\nUnder subsection 55(1), the ID may issue a warrant for the arrest and detention of a foreign national where there are reasonable grounds to believe they are inadmissible and pose a danger to the public or are a flight risk. No warrant is required for foreign nationals that are not protected persons, as defined under subsection 95(2) of the IRPA, and are a danger to the public or a flight risk, or whose identity cannot be confirmed (IRPA, s. 55(2)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-11", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 30", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Within 48 hours of arrest, or otherwise without delay, the ID is required to review the reasons for detention advanced by the Minister responsible for the CBSA, the Minister of Public Safety (IRPA, s. 57(1)). If the ID concludes that a detention order is appropriate, a second review must take place within the following seven days, and then again, if necessary, within every subsequent 30-day period (IRPA, s. 57(2)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-12", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 31", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsection 58(1) stipulates that grounds for detention may exist in five circumstances: Release — Immigration Division 58. (1) The Immigration Division shall order the release of a permanent resident or a foreign national unless it is satisfied, taking into account prescribed factors, that (a) they are a danger to the public; (b) they are unlikely to appear for examination, an admissibility hearing, removal from Canada, or at a proceeding that could lead to the making of a removal order by the Minister under subsection 44(2); (c) the Minister is taking necessary steps to inquire into a reasonable suspicion that they are inadmissible on grounds of security, violating human or international rights, serious criminality, criminality or organized criminality; (d) the Minister is of the opinion that the identity of the foreign national — other than a designated foreign national who was 16 years of age or older on the day of the arrival that is the subject of the designation in question — has not been, but may be, established and they have not reasonably cooperated with the Minister by providing relevant information for the purpose of establishing their identity or the Minister is making reasonable efforts to establish their identity; or (e) the Minister is of the opinion that the identity of the foreign national who is a designated foreign national and who was 16 years of age or older on the day of the arrival that is the subject of the designation in question has not been established. Mise en liberté par la Section de l’immigration 58.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-13", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 31–32", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) La section prononce la mise en liberté du résident permanent ou de l’étranger, sauf sur preuve, compte tenu des critères réglementaires, de tel des faits suivants : a) le résident permanent ou l’étranger constitue un danger pour la sécurité publique; b) le résident permanent ou l’étranger se soustraira vraisemblablement au contrôle, à l’enquête ou au renvoi, ou à la procédure pouvant mener à la prise par le ministre d’une mesure de renvoi en vertu du paragraphe 44(2); c) le ministre prend les mesures voulues pour enquêter sur les motifs raisonnables de soupçonner que le résident permanent ou l’étranger est interdit de territoire pour raison de sécurité, pour atteinte aux droits humains ou internationaux ou pour grande criminalité, criminalité ou criminalité organisée; d) dans le cas où le ministre estime que l’identité de l’étranger — autre qu’un étranger désigné qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause — n’a pas été prouvée mais peut l’être, soit l’étranger n’a pas raisonnablement coopéré en fournissant au ministre des renseignements utiles à cette fin, soit ce dernier fait des efforts valables pour établir l’identité de l’étranger; e) le ministre estime que l’identité de l’étranger qui est un étranger désigné et qui était âgé de seize ans ou plus à la date de l’arrivée visée par la désignation en cause n’a pas été prouvée.\n\nThe language of Parliament in subsection 58(1) is clear and the context and purpose of section 58 does not change the plain meaning of that language. Under subsection 58(1), detention must cease unless the ID is satisfied, on a balance of probabilities, that a ground for detention exists. If a ground for detention is not established, the inquiry is at an end. Release is the default.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-14", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 33", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "But detention does not simply follow on proof of a ground for detention. Section 248 of the Regulations makes this clear. Before a detention order is made, the ID must proceed to the second stage and examine whether detention is warranted based on certain prescribed factors (see also Sasha Baglay & Martin Jones, Refugee Law, 2nd ed. (Toronto, ON: Irwin Law, 2017) at 389). The prescribed factors are as follows: Other factors 248. If it is determined that there are grounds for detention, the following factors shall be considered before a decision is made on detention or release: (a) the reason for detention; (b) the length of time in detention; (c) whether there are any elements that can assist in determining the length of time that detention is likely to continue and, if so, that length of time; (d) any unexplained delays or unexplained lack of diligence caused by the Department, the Canada Border Services Agency or the person concerned; (e) the existence of alternatives to detention; and (f) the best interests of a directly affected child who is under 18 years of age. Autres critères 248. S’il est constaté qu’il existe des motifs de détention, les critères ci-après doivent être pris en compte avant qu’une décision ne soit prise quant à la détention ou la mise en liberté : a) le motif de la détention; b) la durée de la détention; c) l’existence d’éléments permettant l’évaluation de la durée probable de la détention et, dans l’affirmative, cette période de temps; d) les retards inexpliqués ou le manque inexpliqué de diligence de la part du ministère, de l’Agence des services frontaliers du Canada ou de l’intéressé; e) l’existence de solutions de rechange à la détention; f) l’intérêt supérieur de tout enfant de moins de dix-huit ans directement touché.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-15", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 34–36", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "These factors were first articulated by Rothstein J., then of the Federal Court, in Sahin v. Canada (Minister of Citizenship & Immigration) (1994), [1995] 1 F.C. 214, 5 Imm. L.R. (3d) 159 (Fed. T.D.) at 231 (Sahin). They were subsequently given legislative expression in section 248 of the Regulations, which came into force in 2002 (S.O.R./2002-227).\n\nIn considering alternatives to detention, the ID may impose any conditions on the detainee that it considers necessary to mitigate the risks (IRPA, s. 58(3)). Either the Minister or the detainee may subsequently apply to vary these conditions on the basis that they are no longer necessary to ensure compliance.\n\nIf the ID orders detention, the detainee is remitted to the custody of the CBSA. The CBSA may decide to place the detainee in an Immigration Holding Centre (IHC), or transfer the detainee to provincial authorities to be housed in a provincial correctional institution. The ID has no control over the privileges a detainee has access to while detained. If a detainee is dissatisfied with the conditions of their detention, they can bring a judicial review application in the Federal Court, if housed in a federal institution, or, if in a provincial institution, in the provincial superior court using legislation such as the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-16", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 37–38", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is clear from this review that the immigration detention scheme has all of the protections mandated by Charkaoui to ensure that extended periods of detention do not violate sections 7, 9 and 12 of the Charter. Detention reviews are timely and frequent: subsection 57(2) of the IRPA requires that detention be reviewed within 48 hours of arrest, within seven days after that, and every 30 days for the detention’s duration. The onus is on the Minister to establish both a ground of detention and that detention is warranted based on mandatory, case-specific factors. Detention may only be ordered where there are no appropriate alternatives, and, in considering alternatives to detention, subsection 58(3) authorizes the ID to impose any conditions that it considers necessary to neutralize the risk associated with release. The legality of the detention is subject to judicial scrutiny in the Federal Court.\n\nThe Supreme Court has recently suggested in obiter in Chhina (at para. 60) that the factors under section 248 of the Regulation may be deficient or vague because they do not expressly require release if removal is not foreseeable. This obiter statement, made in passing, does not repeal the central holding of the Supreme Court in Charkaoui, namely that an ongoing detention does not automatically run afoul of the Charter. In Charkaoui, the section 248 factors formed the heart of the issue before the Court. It would be startling if some idle words in Chhina displaced the detailed, well-considered and necessary holding in Charkaoui, almost as if by a side-wind.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-17", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 39", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the appellants say that the legislation does not go far enough. They note that the IRPA is constitutionally flawed in that does not expressly say that there can be no detention in the absence of a reasonably foreseeable prospect of removal and does not impose a maximum period of time during which a person can be detained. For the reasons that follow, these arguments fail.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-18", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 40", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statutory power, such as the power to detain in this case, can only be used for the purposes for which it was intended. This principle of administrative law stems from the requirement that all government action must be authorized by a grant of legal authority. Whether express or implied, the text of a statute, seen in light of its context and purpose, prescribes the limits of the legal authority of a decision-maker exercising discretionary power (Brown and Evans, Judicial Review of Administrative Action in Canada, (Toronto: Thomson Reuters, 2019) at § 15:2241; Entertainment Software Assoc. v. Society Composers, 2020 FCA 100 at para. 88 (Entertainment Software Assoc.) and cases cited therein). The classic statement of this principle is found in Roncarelli v. Duplessis, [1959] S.C.R. 121, 16 D.L.R. (2d) 689 (Roncarelli) where Rand J. said (at 140): In public regulation of this sort there is no such thing as absolute and untrammelled ‘discretion’, that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator; no legislative Act can, without express language, be taken to contemplate an unlimited arbitrary power exercisable for any purpose, however capricious or irrelevant, regardless of the nature or purpose of the statute.[...][T]here is always a perspective within which a statute is intended to operate; and any clear departure from its lines or objects is just as objectionable as fraud or corruption.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-19", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 41–42", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Citing Roncarelli, the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 observed (at para. 108) (Vavilov): […] while an administrative body may have considerable discretion in making a particular decision, that decision must ultimately comply \"with the rationale and purview of the statutory scheme under which it is adopted\": Catalyst […]. Likewise, a decision must comport with any more specific constraints imposed by the governing legislative scheme, such as the statutory definitions, principles or formulas that prescribe the exercise of a discretion: see Montréal (City), at paras. 33 and 40-41; Canada (Attorney General) v. Almon Equipment Ltd., 2010 FCA 193, [2011] 4 F.C.R. 203 (F.C.A.), at paras. 38-40.\n\nThe IRPA has many purposes and objectives, including ensuring the safety and security of Canadians and the promotion of international justice by denying safe harbour for criminals or those who pose a security risk (IRPA, paras. 3(1)(h), (i)). The power to detain, as set out in subsection 58(1), is one of the mechanisms by which those purposes are realized. That detention can only be ordered where it is linked, on the evidence, to one of the enumerated grounds listed in subsection 58(1) is an application of this principle. The power to detain must always remain tethered to the IRPA’s purposes and objectives.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-20", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 43–45", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The implicit requirement that the power to detain can only be exercised where it facilitates the purposes of the IRPA has guided the IRPA’s interpretation for decades. In Sahin at 226-229, Rothstein J. drew on R. v. Governor of Durham Prison, Ex parte Singh, [1984] 1 All E.R. 983, [1984] 1 W.L.R. 704 (Q.B.). There, in considering the immigration detention power provided by the Immigration Act, 1971, Woolf J. (as he then was) concluded that the Act was subject to two implicit limitations: the power to detain was limited to the purposes of removal and the responsible minister must move “with all reasonable expedition” to ensure removal.\n\nSection 58 of the IRPA authorizes detention for several purposes, including pending determination of identity, pending a determination of admissibility or on the grounds of public safety. The power of detention will be exercised principally, but not exclusively, pending removal. Where detention is for the purposes of removal, and there is no longer a possibility of removal, detention on this ground no longer facilitates the machinery of immigration control and the power of detention cannot be exercised. Detention must always be tethered, on the evidence, to an enumerated statutory purpose. To conclude, the IRPA is not constitutionally deficient because it does not state expressly that which the law already requires.\n\nThis conclusion is not altered by the Charter.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-21", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 46–47", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Interwoven with the modern approach to the interpretation of legislation is the presumption that Parliament intends to enact legislation in conformity with the Charter. If a legislative provision can be read both in a way that is constitutional and in a way that is not, the former reading should be adopted (Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, 59 D.L.R. (4th) 416 at 1078 (Slaight); R. v. Swain, [1991] 1 S.C.R. 933, 125 N.R. 1 at 1010; R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606, 93 D.L.R. (4th) 36 at 660; R. v. Lucas, [1998] 1 S.C.R. 439, 157 D.L.R. (4th) 423 at para. 66).\n\nThe presumption of compliance is that “the legislature intends to make legislation that complies with the constitution, and to the extent possible legislation is therefore interpreted to achieve that result” [emphasis in original] (Ruth Sullivan, Sullivan on the Construction of Statutes, 6th ed. (Markham: Lexis Nexis, 2014) 523, at § 16.3 (Sullivan on the Construction of Statutes)). This principle is engrained in Supreme Court of Canada jurisprudence dating back over half a century (see McKay et al. v. The Queen, [1965] S.C.R. 798, 53 D.L.R. (2d) 532 at 803-804). In R. v. Sharpe, 2001 SCC 2, [2001] S.C.R. 45 at para. 33, McLachlin C.J.C. confirmed the presumption’s application in situations where Charter rights are implicated. More recently, the Supreme Court has said that the detention provisions of the IRPA, the very legislation in question here, ought to be interpreted “harmoniously with the Charter values that shape the contours of its application” (Chhina at para. 128, Abella J., dissenting but not on this point).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-22", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 48–51", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the appellants and interveners contend that the Supreme Court has changed the law in the relatively recent, post-Charkaoui decision of Jordan. They say that the Supreme Court has now recognized that in some situations maximum time limits must be imposed to ensure Charter compliance. Mr. Brown argues the appropriate maximum limit in detention is six months, while the End Immigration Detention Network argues that it is three months; after expiry of those limits, they say the detention is arbitrary and violates sections 7 and 9.\n\nJordan does not alter the constitutional holdings in Charkaoui. It is not authority for the proposition that sections 7 and 9 of the Charter require fixed limits on detention.\n\nIn Jordan, the Supreme Court established ceilings beyond which pre-trial delay becomes presumptively unreasonable under section 11(b) of the Charter. Beyond the ceiling, the burden shifts to the Crown to rebut the presumption of unreasonable delay based on exceptional circumstances. The ceiling was set at 18 months for offences tried in provincial court, and 30 months for those tried in the superior court or those tried in provincial court after a preliminary inquiry (Jordan at para. 105).\n\nThe objective of the guidelines established in Jordan was to protect the constitutional right to trial within a reasonable time under section 11(b) of the Charter. But the considerations which prompted the Court to establish those guidelines contrast markedly with those surrounding immigration detention. As I will explain, the differences between the criminal justice system and that of immigration detention could not be greater.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-23", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 52–53", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Together, the federal and provincial governments have complete control over almost every aspect of the criminal justice system and the variables that affect delay. The federal government has responsibility for substantive criminal law and criminal procedure via the Criminal Code, R.S.C. 1985, c. C-46. The construction of courtrooms, appointment of judges, staffing of provincial courts and prosecutors, and the resources available to police to organize disclosure are all within the legislative competence of either the federal or provincial governments.\n\nIn contrast, while removal is one of the objectives of detention, Canada does not have complete control over its realization. Removal may be frustrated by political turmoil in the receiving state. Removal may be delayed by a dearth of evidence as to identity (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Rooney, 2016 FC 1097, [2017] 2 F.C.R. 375). Travel documents must be obtained from a great number and diversity of countries, some of which may not be in a hurry to have a particular national returned. Each will have a different view of what constitutes a timely administrative response to requests for travel documents. Removal is dependent on the cooperation of the receiving state, which, for a myriad of reasons, may be reluctant to or incapable of issuing a travel document. Mr. Brown’s situation is a good example. In spite of various, often unanswered, entreaties on the part of the CBSA, it took the Jamaican government nearly five years to confirm Mr. Brown’s nationality and issue a travel document. With the document finally in hand, the CBSA deported Mr. Brown the next day.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-24", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 54��56", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants rely on international law and the law of foreign jurisdictions to argue that a textual reading of the IRPA pertaining to immigration detention is inconsistent with basic international norms.\n\nThere is a well-established presumption that, where possible, Canada’s domestic legislation should be interpreted to conform to international law (R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at para. 53 (Hape)). “Where possible” is a key qualifier (Entertainment Software Assoc. at paras. 76-92). Absent contrary indication, legislative provisions are also presumed to observe “the values and principles of customary and conventional international law” (Hape at para. 53; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58, [2015] 3 S.C.R. 704 at para. 47; Sullivan on the Construction of Statutes at §18.6; see also de Guzman v. Canada (Minister of Citizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655 at paras. 82–87 and Entertainment Software Assoc. at paras. 89-90).\n\nTherefore, both Canada’s international treaty obligations and the principles underlying international law can play a role in the interpretation of Canadian laws. This is reinforced by paragraph 3(3)(f) of the IRPA, which directs that the Act “is to be construed and applied in a manner that […] complies with international human rights instruments to which Canada is signatory.”", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-25", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 57–58", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is, however, an important counterweight to these principles—the doctrine of Parliamentary supremacy. An unambiguous provision must be given effect even if it is contrary to Canada’s international obligations or international law (Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281 at para. 35; Schreiber v. Canada (Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269 at para. 50; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, 74 D.L.R. (4th) 449 at 1371; Gitxaala Nation v. Canada, 2015 FCA 73 at para. 16; Hape at para. 54; and see generally the comprehensive discussion in Entertainment Software Assoc. at paras. 76-92).\n\nThere is no doubt as to the design, operation or effect of the detention provisions. The appellants have not identified ambiguities or duelling interpretations that would open the door to an interpretation most consistent with international law. Reduced to its essence, the appellants’ argument is simply that in some jurisdictions immigration detention is dealt with somewhat differently. Leaving section 1 of the Charter aside, in light of Parliament’s clear legislative choice as to the design of the immigration detention scheme, the practices or legislative frameworks of other jurisdictions are irrelevant.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-26", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 59–60", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, as the Federal Court concluded, the Canadian immigration detention scheme is consistent with that of the United Kingdom. The UK legislation does not mandate fixed periods of maximum detention but, as in section 248 of the Regulations, articulates a number of discretionary considerations relevant to whether a detention order should issue. Turning to the European Union, while the EU Return Directive does set a maximum period of detention of 18 months, member states are not required to comply with this limit where third country nationals are denied entry at a country’s border or where, like Mr. Brown, they are being returned following inadmissibility rulings arising from criminal convictions. The Ontario Court of Appeal, in hearing Mr. Brown’s habeas corpus application, did not find his arguments grounded in international law to be persuasive (Brown v. Canada (Public Safety), 2018 ONCA 14, 420 D.L.R. (4th) 124 at paras. 37-38).\n\nThe immigration detention regime is constitutionally sound and does not infringe sections 7 or 9 of the Charter. No principle of statutory interpretation requires that, to ensure constitutionality, the legislature must state that which the law already requires. To require an express statement that the power of detention can only be exercised where there is a real possibility of removal would be to read in a redundancy. The statute books of our land would read very differently if, to ensure constitutionality, they had to codify all the applicable common law and constitutional law principles that frame the interpretation and understanding of legislation.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-27", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 61–63", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants advance an alternate argument. They contend that the question to be answered is not whether the legislation can be applied in a constitutionally sound manner, but rather whether the ID is empowered by the legislation to violate the detainees’ Charter rights. Put otherwise, because the discretion in section 248 is not expressly subordinated to the obligation to release in the face of an unreasonably lengthy detention or a removal that is not reasonably foreseeable, the scheme is constitutionally defective. The appellants focus on the scope of the word “consider” and the fact that the duration of detention is but one factor to be considered in section 248 of the Regulations. They say that a constitutionally compliant statute is one under which unconstitutional over-holding is impossible.\n\nThis argument is inconsistent with established methodology of Charter analysis. As I will explain, the appellants’ argument invites this Court to do precisely what the Supreme Court has instructed us not to do since the inception of the Charter.\n\nThe first question a court must ask in any Charter challenge is whether the infringement arises from the provisions of the legislation or whether it arises from a discretion granted by the legislation.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-28", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 64", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statutory provision cannot be interpreted in a manner that grants discretion to infringe the Charter unless such infringement is mandated by Parliament. The comments of Lamer J. (as he then was) in Slaight are apposite (at 1078): […] As the Constitution is the supreme law of Canada and any law that is inconsistent with its provisions is, to the extent of the inconsistency, of no force or effect, it is impossible to interpret legislation conferring discretion as conferring a power to infringe the Charter, unless, of course, that power is expressly conferred or necessarily implied. Such an interpretation would require us to declare the legislation to be of no force or effect, unless it could be justified under s. 1. Although this Court must not add anything to legislation or delete anything from it in order to make it consistent with the Charter, there is no doubt in my mind that it should also not interpret legislation that is open to more than one interpretation so as to make it inconsistent with the Charter and hence of no force or effect. Legislation conferring an imprecise discretion must therefore be interpreted as not allowing the Charter rights to be infringed. [Emphasis added]", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-29", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 65–66", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "When a party attacks the validity of a legislative provision, the relevant inquiry is whether the law being attacked produces an unconstitutional effect. Where unconstitutional acts are committed under constitutional laws, the Supreme Court has noted that “[t]he acts of government agents acting under such regimes are not the necessary result or ‘effect’ of the law, but of the government agent’s applying a discretion conferred by the law in an unconstitutional manner. Thus, section 52(1) is not applicable. The appropriate remedy lies under s. 24(1)” (R. v. Ferguson, 2008 SCC 6, [2008] 1 S.C.R. 96 at paras. 59-60 (Ferguson); see also Schachter v. Canada, [1992] 2 S.C.R. 679, 93 D.L.R. (4th) 1 at 719-720, Lamer C.J.C.).\n\nLittle Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120 (Little Sisters) is also instructive. In that case, the appellants argued that the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) and Customs Tariff, R.S.C. 1985, c. 41 (3rd Supp.) infringed their section 2(b) and section 15 Charter rights. The argument focused in part on the unconstitutionality of the prohibition against obscenity, set out in the Criminal Code, R.S.C. 1985, c. C-46 when applied by customs officers, with Little Sisters arguing that a regulatory structure open to maladministration was unconstitutionally under-protective of their constitutional rights (at para. 71).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-30", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 67–70", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court held that there is no constitutional rule that requires Parliament to address, affirmatively, the customs treatment of constitutionally protected expressive material by legislation rather than by way of regulation, ministerial directive or even departmental practice. Parliament is entitled to proceed on the basis that its enactments “will be applied constitutionally” by the public service (at para. 71).\n\nThe Supreme Court found that the source of the problem lay with customs officials who had been acting outside of the constitutionally sound statutory framework by specifically targeting homosexual erotica in violation of section 15(1) of the Charter. Binnie J., writing for the majority of the Court, stated “[...] there is nothing on the face of the Customs legislation, or in its necessary effects, which contemplates or encourages differential treatment based on sexual orientation” (at para. 125).\n\nAs in the case before us, the appellants’ complaint in Little Sisters was about what Parliament did not enact, rather than what it did enact. For this reason, Binnie J. distinguished cases like R. v. Morgentaler, [1988] 1 S.C.R. 30, 44 D.L.R. (4th) 385 where the legislative scheme itself was held to be unworkable (Little Sisters at paras. 72, 128).\n\nThe appellants rely on Appulonappa for the proposition that the legislation at issue is defective because it does not preclude the possibility of unconstitutional over-holding.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-31", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 71–74", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Appulonappa the Supreme Court found that section 117 of the IRPA, which criminalized the smuggling of aliens into Canada, was unconstitutionally overbroad and contrary to section 7 insofar as it captured humanitarian efforts, mutual aid amongst asylum-seekers or individuals who assisted close family members. The Court found that subsection 117(4), which required that the Attorney General must consent for a prosecution to proceed under section 117, could not save the provision because it was not impossible that the Attorney General could consent to prosecution in a case that was overbroad of the legislative purpose (at paras. 74-77).\n\nAppulonappa does not stand for the proposition that constitutional compliance depends on the “impossibility” of an unconstitutional exercise of discretion.\n\nIn that case, the residual prosecutorial discretion of the Attorney General was advanced as an alternate argument to cure the admittedly overbroad and constitutionally infringing provision of the Criminal Code. Put otherwise, it was argued that the overbreadth of section 117 was remedied by the Attorney General’s discretion to choose not to prosecute. The Supreme Court rejected that argument. The standard of “impossibility” was premised on a finding that the charging provisions were, in and of themselves, infringing.\n\nHere, in contrast, the scheme is constitutional. Where there are regular detention reviews that give full and fair consideration to the non-exhaustive considerations in section 248, prolonged detention is constitutional. Rather than being a source of unconstitutionality, the existence of discretion ensures that the Charter rights of detainees receive full consideration in light of their particular circumstances.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-32", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 75–77", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Canadian Civil Liberties Association v. Canada (Attorney General), 2019 ONCA 243, 433 D.L.R. (4th) 157 (Civil Liberties) the Ontario Court of Appeal considered a constitutional challenge to sections 31-37 of the Corrections and Conditional Release Act, S.C. 1992, c. 20. The Court held that the provisions, which confer discretion on the administrative head of a federal penitentiary to order administrative segregation of inmates based on a number of factors, infringed section 12 of the Charter. The Court, in analyzing the scheme, considered whether the scheme itself was unconstitutional or whether it simply permitted unconstitutional maladministration.\n\nBefore the Court of Appeal, the Attorney General argued that the Act, properly interpreted, had safeguards that rendered it capable of constitutional compliance (Civil Liberties at para. 102). The applications judge had accepted this argument, and concluded that the legislative scheme, even though it permits prolonged segregation, would not “inevitably result in the treatment of an inmate which is grossly disproportionate to the safety risk the inmate presents” [emphasis added] (Corporation of the Canadian Civil Liberties Association v. Her Majesty the Queen, 2017 ONSC 7491, 140 O.R. (3d) 342 at para. 269).\n\nThe Ontario Court of Appeal disagreed. It held, in part because the discretion granted under the Act only required the institutional head to “consider” the inmates’ health prior to making segregation decisions, that it was “not impossible” the legislation’s application could result in grossly disproportionate treatment (at paras. 105, 110, 113). Based on this and other factors, the Court found the legislation to infringe section 12.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-33", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 78–79", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "For the reasons I have given, I do not agree that the litmus test for constitutionality is that it must be impossible to exercise discretion in an unconstitutional manner. The word “consider”, if one follows the reasoning of the Ontario Court of Appeal, is not to be read in a manner that is consistent with the Charter. However, this is the opposite of what the Supreme Court, from Slaight, through to Ferguson and Little Sisters and beyond, has instructed. A statutory grant of discretionary power should be read to require that it be exercised in a constitutional way, unless the statutory power itself impliedly or expressly authorizes infringement of the Charter, in which case the statutory grant itself may be subject to Charter challenge (Slaight at 1078). In this case, the statutory grant of discretionary power uses the word “consider”, an open-ended grant of discretion. Far from precluding the decision maker from having regard to Charter standards when assessing the appropriateness of detention, it requires it.\n\nThe guidance arising from Slaight, Ferguson and Little Sisters directly applies to and disposes of the appellants’ argument that the legislation is defective because it does not expressly prohibit detention when removal is not reasonably foreseeable. There is no proposition of law that legislation, to pass constitutional muster, must exclude all possibility of unconstitutional exercises of discretion. If that were the case, the Supreme Court would have been mistaken in Charkaoui when it determined that the remedy for an immigration detention beyond a permissible length lay in section 24(1) (at para. 123).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-34", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 80–81", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Charter does not require that the possibility of maladministration pursuant to a statutory grant of discretion be eradicated from statutes. Rather, the Charter requires that discretion be guided by objective criteria that are capable of identification, articulation and judicial supervision. This is readily demonstrated by three analogous situations: section 24(2) of the Charter, pre-trial detention or bail provisions, and the provisions of the Criminal Code dealing with release pending appeal of a conviction. A comparative review of the broad discretion granted under these provisions demonstrates that the discretion to detain under section 58 of the IRPA and section 248 of the Regulations is constitutionally compliant.\n\nIn Mills v. The Queen, [1986] 1 S.C.R. 863, 29 D.L.R. (4th) 161 (Mills), McIntyre J. commented on section 24(2) of the Charter and the authority of a court to grant any remedy which it considers “appropriate and just in the circumstances”, and concluded that it was “difficult to imagine language which could give the court a wider and less fettered discretion” (at 965). Nonetheless, section 24(2) was “an acceptable statutory standard to overcome vagueness” (R. v. Farinacci (1993), 109 D.L.R. (4th) 97, 86 C.C.C. (3d) 32 (Ont. C.A.) at 115 (Farinacci)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-35", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 82–83", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The circumstance of bail pending appeal also illustrates the point that broad statutory language will not offend constitutional standards where it is capable of judicial definition. In Farinacci, the Ontario Court of Appeal considered the constitutionality of subsection 679(3) of the Criminal Code, which leaves to appellate courts to determine whether detention pending appeal is “necessary in the public interest.” Citing Mills, Arbour J.A. concluded that the discretion to balance the public interest and public safety was not vague or unfettered (at paras. 114-115).\n\nThe discretion conferred by the Criminal Code provisions in respect of initial show-cause hearings and bail review hearings also serves as a useful comparator against which the discretion granted under section 248 of the Regulations can be tested. These provisions confer a broader and vaguer discretion on the judge or justice of the peace at the initial show cause hearing than the detention provisions of the IRPA. They too have survived constitutional challenge.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-36", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 84–85", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As under the IRPA, under subsection 515(1) of the Criminal Code release is the default outcome at the initial bail hearing (R. v. Myers, 2019 SCC 18, [2019] 2 S.C.R. 105 at para. 1). Mirroring the language and structure of section 58 of the IRPA and section 248 of the Regulations, subsection 515(1) states that the accused shall be released unless the prosecutor can show cause why the accused should be detained or released under conditions. Some of the grounds under which a justice may deny bail mirror the grounds for detention under the IRPA scheme. In order for a justice of the peace or a judge to order pre-trial detention, the Crown must establish that there is a flight risk or that detention is necessary for the protection or safety of the public (Criminal Code, s. 515(10)(a) and (b)).\n\nOther grounds bear no resemblance. In contrast to the immigration detention regime, paragraph 515(10)(c) of the Criminal Code grants a right to detain if the judge is of the view that “detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances” surrounding the offence. The exercise of that discretion is informed by a number of statutory criteria, but no instruction is given as to how these criteria are to be weighed or how they relate to the grounds of detention (see, e.g., R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328 (St. Cloud)). These are the same criticisms that the appellants make of the immigration detention regime.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-37", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 86–87", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In respect of certain offences, there is a reverse onus at the initial show cause hearing on the accused to demonstrate that they should be released. The reversal of onus is constitutional (R. v. Morales, [1992] 3 S.C.R. 711, 144 N.R. 176). In contrast, there are no reverse onus provisions under the IRPA and the onus is always on the Minister to justify detention at each and every detention review.\n\nBail reviews under sections 520 and 521 of the Criminal Code are distinguishable from the current case. They are not de novo hearings and a detention or release order is only set aside where admissible new evidence shows a material or relevant change in circumstances, where there has been an error of law or where the decision is clearly inappropriate (St. Cloud at paras. 6, 94, 110, 120-121, 139). In the last of these situations, “a reviewing judge cannot simply substitute his or her assessment of the evidence for that of the justice who rendered the impugned decision” (St. Cloud at para. 6). In sharp contrast to bail review, and as will be discussed, each and every immigration detention review is a fresh, de novo determination of whether detention is warranted.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-38", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 88–90", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Whether to order the pre-trial release of an accused involves a delicate balancing of all of the relevant circumstances (St. Cloud at para. 6). The same is true for whether to order detention pending deportation. As McLachlin C.J.C. noted in Charkaoui, the section 248 criteria—rather than being a source of some deficiency—are the guarantors of constitutional compliance (at paras. 110-117). The section 248 factors are “prescribed” factors which “must” be taken into account and ensure that extended periods of detention do not violate the Charter (paras. 109-123). The discretion the factors confer is precisely what ensures sensitivity to the context and circumstances of the individual case—a requirement under Charkaoui for constitutional prolonged detention (at para. 107).\n\nWhat are the defining characteristics of a detention review that complies with the Charter and administrative law? This engages substantive legal questions concerning the need for a nexus to an immigration purpose, compliance with sections 7, 9 and 12 of the Charter, the burden of proof, the relevance of previous detention decisions, and the content of procedural fairness.\n\nThe factors in section 248 of the Regulation, as law, must be followed. But on top of that, in order for continued detention to be legal under IRPA, there must be a nexus between detention and an immigration purpose. If that is missing, detention under IRPA is no longer possible.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-39", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 91–93", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Once again, the Supreme Court has already gone some way towards giving us guidance on this. Detention in this context is available only where it is reasonably necessary for immigration purposes: Charkaoui at para. 124, citing R. v. Governor of Durham Prison, ex parte Singh, [1984] 1 All E.R. 983 (Q.B.) and Zadvydas v. Davis, 533 U.S. 678 (2001). Absent a “possibility of deportation”, detention in this context is no longer possible: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department, [2005] 3 All E.R. 169, [2004] UKHL 56.\n\nIn assessing the presence of an immigration nexus, Charkaoui tells us that detention may be lengthy and it may be indeterminate. Charkaoui instructs that length itself is not the only relevant metric, nor is the fact that the date of removal is unknown; indeed, if the date of removal were known, it is doubtful that the parties would be before the court. When examining the constitutionality of indeterminate detention the question is whether removal, and not the precise date on which removal will occur, remains a possibility: Charkaoui at para. 125-127, citing A. v. Secretary of State for the Home Department.\n\nThe appellants contend that the test for a nexus to an immigration purpose is whether removal is reasonably foreseeable. I do not agree that this is the test. There are problems in this, not the least of which is that it is not the test established by the Supreme Court of Canada, which is that removal be a possibility (Charkaoui at 125-127). As noted, if Charkaoui is read properly, detention is warranted where it is “reasonably necessary” and removal “a possibility.” The Court makes no mention of a test of foreseeability.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-40", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 94–95", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Reasonable foreseeability, on its own, offers no clear guidance to the factors, considerations or evidentiary thresholds relevant to its application. It raises the questions “foreseeable by whom?” and “reasonable according to whom?” and, perhaps for these reasons, as the habeas cases which have adopted the test demonstrate, it leads to inconsistent results. The rule of law mandates, and the jurisprudence on bail demonstrates, that in matters where liberty interests are engaged, discretion should, to the extent possible, be exercised on clear and discernable criteria, as consistently as possible. “Reasonable foreseeability” does not do this. It also invites the unhelpful exercise of assessing what is “reasonable” in the context of countries with legal, political and structures of public administration vastly different than ours and with which judges have no experience.\n\nThe focus of the “possibility” test is, to the contrary, on the existence of objective, credible facts. The decision maker must be satisfied, on the evidence, that removal is a possibility. The possibility must be realistic, not fanciful, and not based on speculation, assumption or conjecture. It must be grounded in the evidence, not supposition, and the evidence must be detailed and case-specific enough to be credible. In my view, as far as a nexus to an immigration purpose is concerned, despite the different wording, there is a general congruence between the detention review and habeas tests.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-41", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 96–98", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The foregoing concerns only the starting requirement that there be a nexus to an immigration purpose, in other words whether continued detention can be ordered. But just because it can be ordered does not mean it should. It is at a second stage, namely whether detention should be ordered, that proximity or remoteness of a removal date is engaged. The length of the detention to date and the conditions of the detention are also relevant to that question, i.e., the judge’s discretion, informed by the Charter, as to whether continued detention should be ordered. There may be circumstances where a detention, by virtue of its duration or the conditions of detention affects the liberty interest of the detainee so significantly that the Charter rights of the detainee are offended and release is warranted. We leave definitive consideration of this for a future day on the specific facts of a live case.\n\nI offer a few further comments to guide that consideration.\n\nWhile duration of the detention matters, duration alone is instructive of nothing, and, as several habeas corpus cases that follow Chaudhary v. Canada (Public Safety and Emergency Preparedness), 2015 ONCA 700, 127 O.R. (3d) 401 (Chaudhary)) demonstrate, a narrow focus on duration leads to a range of subjective and inconsistent decisions (see, e.g., Ogiamien v. Ontario (Community Safety and Correctional Services), 2017 ONCA 839, 55 Imm. L.R. (4th) 220; Canada (Minister of Citizenship and Immigration) v. Dadzie, 2016 ONSC 6045, [2016] O.J. No. 5185; Scotland v. Canada (Attorney General), 2017 ONSC 4850, 52 Imm. L.R. (4th) 188; Ali v. Canada (Attorney General), 2017 ONSC 2660, 26 Admin. L.R. (6th) 78).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-42", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 99–101", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Detention cannot be ordered on the basis of non-cooperation alone—to do so would be contrary to sections 7 and 9. But where the impasse in effecting removal is disputed identity and the detainee has refused to cooperate in confirming their identity, delays in removal cannot count against the Minister. Release in these circumstances would encourage detainees to be less than forthcoming. Where a detainee is uncooperative, detention cannot be classified as indefinite because it is within the detainee’s control to change their destiny. That said, there will be cases where the receiving country alone disputes identity. Care must be taken not to attribute this to the detainee, who should not bear the burden of the country’s recalcitrance to confirm identity.\n\nThe presence of good faith is necessary. In assessing the Ministers’ efforts to effect removal, attention should be paid to all steps taken or that could reasonably be taken to procure the necessary travel documents, and whether the CBSA has actively used the time between periods of detention and release to advance the detainee’s removal.\n\nAs the facts of this case amply demonstrate, Canada’s efforts at removal may be frustrated by the receiving country. Even if a detainee consents to removal, removal depends on the receiving country issuing the necessary travel documents.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-43", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 102–105", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The conduct of the receiving country may explain the delay. Canada has the tools necessary to obtain cooperation, whether through escalating levels of diplomatic and political pressure, negotiated bilateral return agreements or placing visa or other entry requirements on nationals from the delinquent country. The question in these circumstances, where there is an impasse, is whether there is a proposed demarche or next step that is likely to advance the process. In other words, does the Minister have a plan to circumvent the impasse and is there a real possibility that it will lead to removal?\n\nThe variable conditions of detention (in a maximum security facility instead of an IHC) are not pertinent to whether detention is necessary to achieve removal. The conditions of detention are relevant to the legality of detention and the consideration of proportionality, whether under section 12 of the Charter or under judicial review.\n\nThe appellants maintain that because the ID lacks jurisdiction to control the conditions of detention when the detainees are in provincial institutions, the ID cannot ensure proportionality between detention and the reasons for detention. Detention is therefore arbitrary and results in cruel and unusual punishment. In the same vein, the appellants contend that the absence of an explicit power of the ID to consider “harsh or illegal” conditions of detention undermines the regime’s constitutionality.\n\nThis argument fails, both on the law and the evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-44", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 106–107", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "There is a duty on ID members to exercise their discretion in a manner consistent with the Charter (Canada (Minister of Citizenship and Immigration) v. Thanabalasingham, 2004 FCA 4, [2004] 3 F.C.R. 572 at para. 14 (Thanabalasingham); Sahin at 228-229). As Abella J. observed in Chhina, “[t]he Charter both guides the exercise of discretionary administrative decision making under [the] IRPA and informs our interpretation of the scheme itself” (at para. 128).\n\nAn express power for the ID to consider the nature or conditions of detention is not required (R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R. 765 at para. 78). The ability, indeed obligation, to consider sections 7, 9 and 12 is inherent in the exercise of the discretion concerning whether or not detention is warranted. As a tribunal of competent jurisdiction capable of providing Charter remedies, the ID can order release of a detainee on the grounds that the conditions of detention, on their own or in conjunction with other factors, are disproportionate (Stables v. Canada (Citizenship and Immigration), 2011 FC 1319, [2013] 3 F.C.R. 240 at para. 29; Chaudhary at para. 77).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-45", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 108–109", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As the Supreme Court has explained, a section 12 issue of “cruel and unusual” treatment is intertwined with section 7 considerations, since the indefiniteness of detention, as well as the psychological stress it may cause, is related to the mechanisms available to the detainee to regain liberty (Charkaoui at para. 96). But, as the Court in Charkaoui noted, it is not the detention itself, or its length, that is objectionable; detention is only cruel and unusual in the legal sense if it violates “accepted norms of treatment” (para. 96). As such, denying the means required by the principles of fundamental justice to challenge a detention may render the detention arbitrary and support the argument that it is cruel or unusual, but a system that permits the detainee to challenge the detention and obtain a release if one is justified may lead to the conclusion that the detention is not cruel and unusual (Charkaoui at para. 96).\n\nContrary to the appellants’ argument, Charkaoui does not stand for the proposition that the body reviewing detention must have control over the location and conditions of detention. To be clear, the Supreme Court said that, for an immigration detention scheme to be compliant with sections 7 and 12 of the Charter, it must provide a mechanism for review of detention that permits the reviewing body to set conditions that would neutralize the risk upon release, and that conditions of release must be subject to ongoing, regular review (Charkaoui at paras. 107, 117, 121). The Supreme Court’s focus in Charkaoui is on jurisdiction to impose conditions of release and on the detainee’s opportunity to challenge those conditions, not on the place and conditions of detention.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-46", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 110–111", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In R. v. Boudreault, 2018 SCC 58, [2018] 3 S.C.R. 599 (Boudreault), the Supreme Court reiterated that demonstrating a breach of section 12 is a high bar: the treatment or punishment must be more than merely disproportionate or excessive—it must be so excessive as to “outrage standards of decency” and be “abhorrent or intolerable” to society (at para. 45; see also R. v. Lloyd, 2016 SCC 13, [2016] 1 S.C.R. 130 at para. 24). It is only in very rare and unique occasions that a treatment or punishment will infringe section 12, as the test is “very properly stringent and demanding” (Boudreault at para. 45; see also R. v. Morrisey, 2000 SCC 39, [2000] 2 S.C.R. 90 at para. 26; Steele v. Mountain Institution, [1990] 2 S.C.R. 1385, 121 N.R. 198 at 1417).\n\nAgainst this jurisprudential backdrop, including Charkaoui, many of the appellants’ arguments regarding the conditions of detention were dismissed by the Federal Court. No reviewable error in that finding has been demonstrated. The evidence of conditions of detention falls far short of the threshold of cruel and unusual punishment set by the Supreme Court, and does not support the broad declaration sought by the appellants.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-47", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 112–113", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants rely on the Ontario Court of Appeal decision P.S. v. Ontario, 2014 ONCA 900, 379 D.L.R. (4th) 191 (P.S.). In P.S., the Court found that non-punitive detention under the Mental Health Act, R.S.O. 1990, c. M-7 did not comply with section 7 of the Charter because the Consent and Capacity Board’s powers were inadequate. The review board lacked the jurisdiction to supervise the security level and treatment of long-term detainees and to craft orders that would ensure an appropriate balance between public protection and the protection of detainees’ liberty interests (P.S. at para. 115). The objective of reintegrating patients into the community was frustrated by the fact that the Board could not direct that certain types of treatment or therapies be made available to the detainees. The purpose of detention was to facilitate re-integration and, without those tools, detention was not linked to the legislative objective.\n\nUnder the IRPA, inadmissible foreign nationals are detained in order to ensure that they do not flee or harm the public before they are deported from the country. The purpose of detention is to facilitate public safety and removal. Unlike the Consent and Capacity Board, the ID has all the tools necessary to effect these objectives and, importantly, the jurisdiction to impose conditions on release, which reflects an appropriate balance between the objectives of the Act and the detainees’ liberty interest. The problem in P.S. was that the legislative tools granted to the Board were insufficient in relation to its objectives. Here, in contrast, it is argued that the powers of the ID are overbroad in relation to the objective. The case is of no assistance.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-48", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 114–117", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "More relevant is the Ontario Court of Appeal decision in Toure v. Canada (Public Safety and Emergency Preparedness), 2018 ONCA 681, 40 Admin. L.R. (6th) 261 (Toure).\n\nIn Toure, the Ontario Court of Appeal took no issue with the CBSA criteria that govern the location of detention, and held that the location of detention was a proper issue for immigration detainees to raise with the CBSA (at para. 72). If the location of detention is not consistent with how a detainee fits within the CBSA's own criteria, the decision is the proper subject of judicial review in the Federal Court (at para. 72). I agree with these observations.\n\nThe CBSA’s decision to stream a detainee into a provincial institution as opposed to an IHC is a reviewable decision or order under section 2 of the Federal Courts Act, R.S.C. 1985, c. F-7. Similarly, a detention order that does not take into account the proportionality of the risk and the conditions of detention, can be tested in the Federal Court, on both Charter and administrative law principles. A decision that fails to consider the proportionality between the risk and the measures to mitigate that risk will be set aside, as will a decision that reached an unreasonable conclusion in that regard.\n\nIn any event, as the Federal Court noted, both the federal and Ontario statutes governing the detention of persons in correctional facilities state that any designation of a particular penitentiary in a warrant of committal is of no force or effect (Corrections and Conditional Release Act, S.C. 1992, c. 20, s. 11; Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, s. 17; see Federal Court reasons at para. 136). Neither the appellants nor the interveners point to authorities which deem those provisions to be unconstitutional.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-49", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 118–120", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The detention review scheme established by Parliament imposes a continuing and overarching legal burden on the Minister to establish that detention is lawfully justified according to section 58 of the IRPA, section 248 of the Regulations, and the Charter. The Minister bears the legal burden of establishing, on a balance of probabilities, that there are grounds for detention. If the Minister succeeds in that, the legal burden remains on the Minister to establish, in light of the section 248 criteria, that detention is warranted. This burden rests on the Minister throughout the detention review and re-surfaces every 30 days.\n\nThere are only two burdens in Canadian law: the legal or persuasive burden, sometimes called the onus of proof, and the evidentiary burden.\n\nWhile the terms legal and persuasive burden are interchangeable, “legal burden” is arguably more apt a term than “persuasive burden” because it emphasises the obligation on the asserting party, the plaintiff or the Crown, to establish the requisite substantive factual elements of a cause of action or offence (R. v. Fontaine, 2004 SCC 27, [2004] 1 S.C.R. 702 at paras. 10-12). Those facts must be established on a balance of probabilities in a civil matter and beyond a reasonable doubt in a criminal proceeding (F.H. v. McDougall, 2008 SCC 53, [2008] 3 S.C.R. 41 at paras. 40-41; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23 at para. 94). Importantly, barring a statutory or common law rule, the legal burdens associated with a party never shift (Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, Sopinka, Lederman, & Bryant’s The Law of Evidence in Canada, 5th ed. (Toronto, ON: Lexis Nexis, 2018) at § 3.46 (The Law of Evidence in Canada)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-50", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 121–122", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "If the evidence establishes a ground for detention under the Act and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee’s interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, 175 D.L.R. (4th) 193 at para. 53; The Law of Evidence in Canada at 116, § 3.56; Snell v. Farrell, [1990] 2 S.C.R. 311, 72 D.L.R. (4th) 289 at 329-330; see also R v. Darrach, 2000 SCC 46, [2000] 2 S.C.R. 443 at para. 50). The appellants are right to point to some passages in Federal Court detention reviews that do not respect the difference. The distinction is important, as is the language used. The two ought not be confused.\n\nThe legal burden does not shift or change should the Minister establish a prima facie case of grounds for detention. The detainee is not required in law to do anything. Establishing grounds for detention does not mean that a detention order should issue. It simply means that there is a basis to consider making a detention order. Even when no evidence is offered by the detainee in response, the legal burden is on the Minister to make the case for detention on a balance of probabilities in respect of each of the section 248 factors. A detainee’s decision to introduce evidence in response is entirely tactical.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-51", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 123–124", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nor does the legal burden on the Minister change with successive detention reviews. Whether it is the first or the tenth detention review, the Minister must establish on a balance of probabilities that a ground for detention exists, the existence of a nexus to an immigration purpose and the appropriateness of the detention. What may often change with the passage of time is the quantity and quality of evidence required to justify detention. The longer the period of detention, the more time and opportunity the government has had to make the necessary arrangements with the receiving country and to execute removal. With the passage of time, the assertion that removal remains possible requires a more probing inquiry. Reflecting this reality, in Charkaoui, the Supreme Court stated that the burden on the Minister becomes heavier over time (at para. 113); I take the Supreme Court to have been speaking of an evidentiary or tactical burden here, not a persuasive burden.\n\nThe Supreme Court observed in Mission Institute v. Khela, 2014 SCC 24, [2014] 1 S.C.R. 502 at paragraph 40 (Khela) that the shift in onus from the prisoner to the detaining authority is unique to the writ of habeas corpus. But there is no reason why a statutory detention regime cannot achieve the same effect as habeas corpus. Parliament has crafted such a regime here.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-52", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 125–127", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, the scheme in the IRPA offers procedural and substantive advantages over a habeas corpus application. Properly interpreted, the IRPA requires the Minister to establish afresh the justification for detention every thirty days. The detention review occurs without any action on the part of the detainee, and for the entirety of the inquiry the burden is on the Minister to justify detention. The detainee is not required to do anything, procedurally or substantively. This can be contrasted to an application for habeas corpus where the applicant must initiate the application, establish that they have been deprived of liberty and that there is a legitimate ground to question their detention before the onus shifts to the responding authorities to show that the deprivation was lawful (Khela at para. 30).\n\nThere remain the observations of the Supreme Court in Chhina that the burden on the Minister decreases with time and that the requirement not to depart from prior decisions without clear and compelling reasons leads to self-referential reasoning and, in effect, shifts the onus to the detainee.\n\nChhina must be understood in light of the principles articulated by the Supreme Court in R. v. Henry, 2005 SCC 76, [2005] 3 S.C.R. 609 (Henry). Henry instructs that reasons move along a spectrum—from the ratio, which is binding, to guidance that, although not strictly binding, is expected to be followed, to commentary (at para. 57). The Court’s comments in Chhina on Thanabalasingham fall within the last-mentioned category.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-53", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 128–130", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thanabalasingham does not stand for the proposition that the burden shifts to the detainee. To the contrary, in Thanabalasingham, this Court held precisely the opposite: that “[t]he onus is always on the Minister to demonstrate there are reasons which warrant detention or continued detention” (at para. 16). Similarly, contrary to what the Court said in Chhina, in Charkaoui the Supreme Court held that the burden and evidentiary challenges on the Minister increase with the passage of time.\n\nThe Court in Chhina did not conduct a statutory interpretation exercise of the detention provisions in the IRPA, examine Thanabalasingham in depth or reconsider Charkaoui. For these reasons, the observations in Chhina, above, should not be regarded as binding upon us.\n\nThe appellants argue that the scheme is unconstitutional because the collective weight of past decisions to detain creates a strong incentive to defer to those decisions and maintain detention. Once detained, always detained. The appellants say that this flows from the jurisprudence, which requires an ID member to provide “clear and compelling reasons” if they wish to depart from a prior detention decision (Thanabalasingham at para. 10) and the recent observations of the majority of the Supreme Court in Chhina that the ID’s periodic reviews are susceptible to “self-referential” reasoning (see also Chaudhary at paras. 85-88).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-54", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 131–132", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "If this were a consequence of either the statutory scheme or the effect of Thanabalasingham, these arguments would have substance. But they have no foundation, either in the statutory scheme or in the jurisprudence. I have already explained how nothing in the IRPA or the Regulations places an obligation on a detainee to lead fresh evidence between detention reviews in order for the ID to reach a different result. Nothing in the IRPA requires the detainee to demonstrate a change in circumstances, and neither does the jurisprudence.\n\nIn Thanabalasingham, Rothstein J. expressly and unequivocally rejected the argument that the findings of previous members “should not be interfered with in the absence of new evidence” and held that “at each hearing, the Member must decide afresh whether continued detention is warranted” (at paras. 7-8). Guidelines issued on April 1, 2019, by the Chair of the Immigration and Refugee Board pursuant to paragraph 159(1)(h) of the IRPA reinforce this point and align with the instructions of the Federal Court to the ID in Canada (Public Safety and Emergency Preparedness) v. Hamdan, 2019 FC 1129 (Hamdan) (see Immigration and Refugee Board of Canada, Chairperson Guideline 2: Detention (Ottawa: Immigration and Refugee Board of Canada, April 1, 2019)).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-55", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 133", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Members of the ID are obligated, under their oath and by law, to consider the circumstances of the particular individual whose detention or liberty is in issue in a fair and open-minded way. Each member is required to undertake their own independent assessment of the case for and the case against detention. Abella J. returns to this point in Chhina, noting that “[t]he integrity of the IRPA process is dependent on a fulsome review of the lawfulness of detention, including its Charter compliance, at every review hearing” (at para. 127). Abella J.’s dissenting reasons, which were not contradicted by the majority on the point mentioned here, were foreshadowed in Federal Court jurisprudence (see, e.g., Sahin at 228-230; Thanabalasingham at para. 14).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-56", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 134", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thanabalasingham creates no special rule for ID reviews. The requirement to give reasons when departing from a prior decision is directed to the well-understood requirement, essential to the integrity of administrative and judicial decision making, that if there is a material change in circumstances or a re-evaluation of credibility, the ID is required to explain what has changed and why the previous decision is no longer pertinent. This reinforces the values of transparency, accountability and consistency. As was explained by the Supreme Court of Canada in Vavilov, the primary purpose of reasons is to demonstrate justification, transparency and intelligibility (at para. 81). To promote “general consistency”, any administrative body that departs from its own past decisions typically “bears the justificatory burden of explaining that departure in its reasons” (at paras. 129-131). Moreover, reasons are the primary mechanism by which affected parties and reviewing courts are able to understand the basis for a decision (at para. 81; see also Canada (Public Safety and Emergency Preparedness) v. Berisha, 2012 FC 1100, [2014] 1 F.C.R. 574 at para. 52).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-57", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 135", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "I note, parenthetically, that the role of reasons when making a decision to depart from a previous decision is no different if habeas corpus is sought. The requirement for clear and compelling reasons does not change with the forum. As Professor Paul Daly observed in his commentary on Chhina, where a habeas corpus application is unsuccessful, a detainee may re-apply, and apply again after that. The provincial superior court hearing the habeas corpus application will be faced with the same challenges as the ID in justifying its decision; the same danger of self-referential reasoning remains, one way or another. In part for this reason, the Supreme Court’s solution to the problem in Chhina has been criticized (see, e.g., Paul Daly, “To Have the Point: Canada (Public Safety and Emergency Preparedness) v. Chhina, 2019 SCC 29” (5 June 2019) online (blog): Administrative Law Matters ). As Professor Daly notes, the solution to the self-referential reasoning lies not in offering detainees a different procedure for the assessment of the legality of detention, but rather, as Abella J. stressed in her dissent in Chhina, ensuring that at each detention review detainees’ Charter rights remain front and centre.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-58", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 136–137", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where a decision affects the rights, privileges or interests of an individual, the common law duty of fairness is triggered (see, e.g., Cardinal v. Director of Kent Institution, [1985] 2 S.C.R. 643, 24 D.L.R. (4th) 44 at 653; Baker at para. 20). The greater the effect a decision has on the life of an individual, the more robust will be the procedural protections required to fulfill the duty of fairness and the requirements of fundamental justice under section 7 of the Charter (Charkaoui at para. 25, quoting Suresh v. Canada (Minister of Citizenship & Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3 at para. 118). At a minimum, the duty of fairness requires that the affected person know the case they have to meet and have an adequate opportunity to respond. The procedural rights afforded under section 7 of the Charter provide the same protection for detainees (Charkaoui at paras. 28-29, 53).\n\nAlthough the content of the duty of fairness varies with the context within which it is applied, proceedings with stakes analogous to those in criminal proceedings “will merit greater vigilance by the courts” (Charkaoui at para. 25, quoting Dehghani v. Canada (Minister of Employment & Immigration), [1993] 1 S.C.R. 1053, 101 D.L.R. (4th) 654 at 1077). Because the liberty of the subject is involved, such is the case here.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-59", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 138–139", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Administrative bodies enjoy the autonomy to control their own procedures, but they must nonetheless observe procedural fairness. Only statutory language or necessary implication can displace the duty of procedural fairness (Ocean Port Hotel Ltd. v. British Columbia (General Manager, Liquor Control and Licensing Branch), 2001 SCC 52, [2001] 2 S.C.R. 781 at para. 22; Kane v. Bd. of Governors of U.B.C., [1980] 1 S.C.R. 1105, 110 D.L.R. (3d) 311 at 1113). There is no statutory language in the immigration detention scheme of the IRPA that ousts procedural fairness. The rules respecting disclosure in detention reviews are thus supplemented by the requirement for procedural fairness imposed by the common law.\n\nThe Immigration Division Rules, S.O.R./2002-229 provide in section 26 that documents the parties intend to rely on must be provided in advance: 26. If a party wants to use a document at a hearing, the party must provide a copy to the other party and the Division. The copies must be received: (a) as soon as possible, in the case of a forty-eight hour or seven-day review or an admissibility hearing held at the same time; and (b) in all other cases, at least five days before the hearing. 26. Pour utiliser un document à l’audience, la partie en transmet une copie à l’autre partie et à la Section. Les copies doivent être reçues : a) dans le cas du contrôle des quarante-huit heures ou du contrôle des sept jours, ou d’une enquête tenue au moment d’un tel contrôle, le plus tôt possible; b) dans les autres cas, au moins cinq jours avant l’audience.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-60", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 140–141", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The interveners assert that detainees do not receive sufficient and timely disclosure to allow them to know the case they have to meet and to respond. They argue that the Immigration Division Rules fall short of what fairness requires because they, and the relevant policy guidelines, require disclosure of only the documents on which the Minister intends to rely. They also point to evidence that says that the disclosure that is made is often late and leaves counsel with no ability to adequately represent the detainee’s interests.\n\nThe existence of a legislated disclosure requirement does not dispose of the question whether procedural fairness has been met. The Court must still examine whether the duty of fairness has been fulfilled. The Federal Court observed that Mr. Brown raised “legitimate concerns about the timeliness and quality of pre-hearing disclosure” (Federal Court reasons at para. 127). I agree that those concerns are substantiated by the evidence. Mr. Singh, a hearings officer with the CBSA, admits that, although disclosure is to be provided in advance, “there are times where it is not provided in advance” (Federal Court reasons at para. 110).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-61", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 142–144", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The need for detainees to know the case against them creates a disclosure obligation. To be meaningful, the disclosure obligation cannot be limited to information on which the Minister intends to rely. All relevant information must be disclosed, including information that is only to the advantage of the detainee. This includes information pertaining to the grounds for the detention, information pertaining to the section 248 criteria, the existence of an immigration nexus, and the factors that bear upon the judge’s assessment whether continued detention is warranted and consistent with Charter and administrative law principles. While the disclosure obligation necessarily encompasses information that is helpful to the detainee, it is not unlimited. It is always tempered by the requirement that the information be relevant to the circumstances of the particular detainee.\n\nSection 26 of the Immigration Division Rules, even if followed, does not fulfill the minimum requirements of the common law duty of fairness. This is because the requirement to introduce evidence arises only where information provided is contradicted by another party (Canada, Citizenship and Immigration Canada, ENF 3: Admissibility, Hearings and Detention Review Proceedings, (Ottawa: April 29, 2015) at 34 (ENF 3)).\n\nENF 3 states that “[i]f the hearings officer recommends continued detention, the hearings officer should submit all available evidence to the ID in support of continued detention” (at 38). This falls short of what procedural fairness requires. Procedural fairness requires that the detainee have advance disclosure of all evidence relevant to the section 248 criteria, regardless of whether the Minister relies on it to support continued detention.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-62", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 145", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The legality of a detention order pending removal is underpinned by a finding, on the evidence, that removal remains a possibility. For this reason, disclosure of evidence concerning the likelihood of removal is also central to the legality of a detention order. This in turn requires the ID to assess the Minister’s efforts respecting removal and the reasons for delay at each and every hearing. Detainees are entitled to know what evidence the Minister relies upon for an argument that removal remains a possibility. Subject to recognized public interest privileges arising under section 38.01 of the Canada Evidence Act, R.S.C. 1985, c. C-5, relevant evidence of communications with a receiving country ought to be disclosed in advance of the hearing. Given the obligation imposed by section 248 of the Regulations, it would be a rare case where a member could properly exercise their discretion to continue detention in the absence of this evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-63", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 146–147", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The common law obligation on the Minister to disclose—subject to public interest privileges—all pertinent documents is also consistent with Canada’s international law obligations. The United Nations High Commissioner for Refugees’ Detention Guide emphasizes that a “minimum procedural protection” for detainees is that an immigration detainee’s lawyer “have access […] to records held on their client” (United Nations High Commissioner for Refugees, Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum Seekers and Alternatives to Detention, 2012 at para. 47(ii)). The United Nations Basic Principles and Guidelines on the right of anyone deprived of their liberty to bring proceedings before a court, 4 May 2015, WGAD/CRP.1/2015 (UN Basic Principles and Guidelines) requires that disclosure include information that could assist the detainee, and that it be provided to the detainee “without delay so as to provide adequate time to prepare the challenge” (UN Basic Principles and Guidelines, Guideline 5 at 14, and Guideline 13 at 17-18). The common law requires the same protections.\n\nThe interveners point to the Federal Court’s recent decision, Allen v. Canada (Public Safety and Emergency Preparedness), 2018 FC 486 (Allen), as demonstrative of how the regime lacks procedural protections. In Allen, the Federal Court found that the duty of fairness did not require disclosure of the CBSA’s communications with Jamaica, even though they had been specifically requested by the detainee. The Federal Court’s decision turned in part on the fact that the detainee had been uncooperative (Allen at para. 62).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-64", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 148–149", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The cooperation of a detainee is a relevant consideration for the ID in determining alternatives to detention, the cause of delay in removal and the assessment of the reasonableness of the Minister’s efforts to effect removal. Lack of cooperation, however, is irrelevant when it comes to deciding which procedural protections are afforded to a detainee by the duty of fairness. To the extent that Allen stands for the proposition that lack of cooperation vitiates the Minister’s disclosure obligations, it should not be followed.\n\nThe lawful exercise of the power to order detention requires an adequate evidentiary foundation. This includes all relevant evidence relating to the factors under section 248. In cases of inadequate disclosure, judicial review can be sought, on an expedited basis, and interim orders can be made compelling disclosure (see section 18.2 of the Federal Courts Act). Importantly, a detention decision may be vitiated if it is established that there has not been timely disclosure of material documents which results in a breach of procedural fairness.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-65", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 150–153", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I have noted, the conclusion of the majority of the Supreme Court in Chhina that recourse to habeas corpus should be allowed does not flow from any conclusion regarding the constitutionality of the IRPA. The issue before the Supreme Court was whether habeas corpus was available as an alternative remedy to detention reviews and judicial review. The focus of this case, in contrast, is the constitutionality of the scheme that governs detention and review before the ID. Nonetheless, given the importance of judicial oversight to ensuring the lawful integrity of ID decisions, and considering the submissions received from the parties subsequent to the release of Chhina while this case was under reserve, certain observations are in order.\n\nThe first observation is that whether viewed from a procedural or substantive perspective, judicial review provides a remedy that is fully responsive to the seriousness of the issues under consideration. I will deal with the substantive considerations first.\n\nA majority of Supreme Court in Chhina finds that the ID “does not conduct a fresh review of each periodic detention” and “as such, the scope of review before the Federal Courts is correspondingly narrower than review on habeas corpus” (at para. 64).\n\nTo the contrary, the ID must look at the detainee’s entire detention history. The Regulations themselves require no less. Three of the five criteria in section 248 require the ID to have regard to the length of time in detention, which mandates a consideration of the entire history. The detainee’s entire detention history necessarily forms part of the evidence before the ID, as it will before the Federal Court.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-66", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 154–156", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "Neither the ID, nor the Federal Court assesses the legitimacy of detention blinded to the overall history of detention. Each 30-day detention review requires consideration of the detention as a whole. Indeed, a cursory review of ID and Federal Court decisions demonstrates this to be the case (see, e.g., Canada (Citizenship and Immigration) v. Li, 2009 FCA 85, [2010] 2 F.C.R. 433 at paras. 66-67; Hamdan at paras. 29-30; Canada (Public Safety and Emergency Preparedness) v. Arook, 2019 FC 1130; Canada (Public Safety and Emergency Preparedness) v. Taino, 2020 FC 427; and the Federal Courts Rules, S.O.R./98-106, r. 306-309, r. 317).\n\nWhere the legislation prescribes a set of considerations, and mandates the default outcome of release, departure or deviance from either results in an unlawful decision (Canada (Attorney General) v. Almon Equipment Limited, 2010 FCA 193, [2011] 4 F.C.R. 203). In a detention review, the range of lawful decisions available to the ID member is constrained by section 58 of the IRPA and section 248 of the Regulations. If a detention order has not been made according to law, it will be set aside. For example, an ID member’s failure to consider the likelihood of removal, relevant factors in section 248 or beyond, or alternatives to detention, would result in the decision being set aside. Release would follow unless the Federal Court order is stayed.\n\nMy second observation is that the assertion made to this Court, and to the Supreme Court in Chhina, that judicial reviews were invariably moot has no foundation in the evidence.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-67", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 157–158", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The evidence paints a different picture. As Abella J. noted in Chhina, the Federal Court heard and disposed of Mr. Chhina’s judicial review application in one week less time than the habeas corpus application was heard and decided (at para. 119). Again, a cursory review of Federal Court jurisprudence with respect to detention review demonstrates that applications for judicial review are often heard and disposed of in the Federal Court on an urgent basis (see, e.g., Canada (Public Safety and Emergency Preparedness) v. Shen, 2020 FC 405; Hamdan; Arook; and Taino).\n\nI agree with my colleague, Justice Stratas, who has recently observed that the “factual spin and speculation about the procedural flexibility, innovative capability and remedial effectiveness of the Federal Courts” in Chhina and R. v. Bird, 2019 SCC 7, [2019] 1 S.C.R. 409 at paras. 57-61 is “false and unsupported” (Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108 at para. 22).", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-68", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 159", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court is accessible 24 hours a day, 365 days a year, from coast to coast for urgent applications, in both official languages. Interim stay orders are frequently issued (Federal Courts Act, section 18.2). Time frames are routinely abridged (see, e.g., MPSEP v. Mustafa Abdi Faarah ((IMM-1347-19); MPSEP v. Martin Sevic (IMM-1375-20); Canada (Public Safety and Emergency Preparedness) v. Ahmed, 2019 FC 1006; MPSEP v. Baniashkar, 2019 FC 729; Hamdan and Arook). Hearing dates are routinely expedited. Hearings may be by teleconference, or in person, in Federal Court facilities across Canada. Cases are heard and disposed of as quickly as the parties request or circumstances require (see, e.g., MPSEP v. Malkei, IMM-2466-20; MPSEP v. Shen, IMM-1626-20). Federal Court judges assigned to hear judicial review applications of detention decisions understand that liberty interests are at stake. The remedies can be innovative and creative (see, e.g., Fond du Lac First Nation v. Mercredi, 2020 FCA 59 at para. 5; Canada (Public Safety and Emergency Preparedness) v. LeBon, 2013 FCA 55, 444 N.R. 93; D’Errico v. Canada (Attorney General), 2014 FCA 95, 459 N.R. 167). Further, and unlike many superior courts, there is a standing liaison committee between the Federal Court and representatives of the specialized immigration bar. This committee, including the sub-committee on immigration detention, serves as a vehicle for addressing any matter of concern relating to the efficient and expeditious disposition of immigration proceedings.", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-69", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "paras 160–162", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "In any event, the possibility that an ID decision may be moot is not pertinent. Technically moot decisions may be reviewed where the failure to do so would render the decision evasive of judicial review (Democracy Watch v. Canada (Attorney General), 2018 FCA 195 at para. 14).\n\nTo conclude, judicial review, like habeas corpus, tests the legality of a detention decision against the Charter and common law principles. But it also does much more; it tests the reasoning process, its transparency and its integrity. It examines the treatment of the discretionary factors and whether they were properly taken into account. It holds up the reasons to independent scrutiny to determine whether they pass legal muster, from both a Charter and administrative law perspective. As the Supreme Court concluded in Charkaoui, the remedy of judicial review is “robust” (at para. 123).\n\nThe Federal Court certified the following question: Does the [Charter] impose a requirement that detention for immigration purposes not exceed a prescribed period of time, after which it is presumptively unconstitutional, or a maximum period, after which release is mandatory?", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-483607-70", + "doc_type": "caselaw", + "act_code": "2020 FCA 130", + "act_short": "Brown", + "act_name": "Brown v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Brown v. Canada (Citizenship and Immigration), 2020 FCA 130", + "marginal_note": "para 163", + "heading": "The constitutionality of immigration detention; the Charter and lengthy detention", + "part": "Federal Court of Appeal", + "division": "", + "text": "I 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 NAMES OF COUNSEL AND SOLICITORS OF RECORD Dockets: A-274-17 AND A-282-17 STYLE OF CAUSE: ALVIN BROWN ET AL. v. MINISTER OF CITIZENSHIP AND IMMIGRATION ET AL. PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: February 26-27, 2019 REASONS FOR JUDGMENT BY: RENNIE J.A. CONCURRED IN BY: GAUTHIER J.A. STRATAS J.A. DATED: AUGUST 7, 2020 APPEARANCES: Jared Will Jean Marie Vecina For The Appellant, Alvin Brown Swathi Sekhar FOR THE APPELLANT, End Immigration Detention Network Bernard Assan Charles Julian Jubenville For The Respondents Sharryn Aiken Maureen Silcoff Aris Daghighian For The Interveners SOLICITORS OF RECORD: Jared Will & Associates Toronto, Ontario For The Appellant, Alvin Brown Nathalie G. Drouin Deputy Attorney General of Canada For The Respondents Refugee Law Office Toronto, Ontario For The Interveners", + "current_to": "2020-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/483607/index.do" + }, + { + "id": "fca-36347-1", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 1–4", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of the Federal Court, 2008 FC 341, dated March 13, 2008, pursuant to which Madam Justice Dawson dismissed the appellants’ judicial review application on the ground that it was moot. In so concluding, the learned Judge certified the following question: Where an applicant has filed an application for leave and judicial review challenging a refusal to defer removal pending a decision on an outstanding application for landing, and a stay of removal is granted so that the person is not removed from Canada, does the fact that a decision on the underlying application for landing remains outstanding at the date the Court considers the application for judicial review maintain a “live controversy” between the parties, or is the matter rendered moot by the passing of scheduled removal date?\n\nAs the certified question makes clear, the appellants filed an application for leave to commence a judicial review following the refusal by an enforcement officer to defer their removal from Canada until a decision had been rendered with regard to a humanitarian and compassionate application (“H&C application”) made by them pursuant to section 25 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the “Act”).\n\nTwo issues arise in this appeal. The first one is the issue of mootness to which the certified question pertains. The second issue, which we need address only if we conclude that the judicial review application is not moot, concerns the reasonableness of the enforcement officer’s decision to refuse to defer the appellants’ removal from Canada.\n\nI now turn to the facts relevant to the disposition of the appeal. THE FACTS", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-2", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 5–8", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants are citizens of Argentina who entered Canada in April 2000 as visitors. In November 2000, shortly after their visas expired, they filed claims for refugee protection which were rejected by the Convention Refugee Determination Division of the Immigration and Refugee Board on May 30, 2002. As a result, the departure orders made against them when they filed their refugee claims became effective. On October 16, 2002, their application for leave to commence a judicial review application was dismissed by the Federal Court.\n\nOn November 30, 2004, counsel for the appellants made an inquiry with regard to an H&C application which, according to counsel, had been submitted on behalf of the appellants in March 2003. The Case Processing Centre in Vegreville responded to this inquiry and advised counsel that it had no record of an H&C application having been filed on behalf of the appellants.\n\nIn January 2006, warrants were issued against the appellants by reason of their failure to report for a pre-removal interview. The warrants were executed against them in March and July 2006, at which time they were again informed that there was no record of a pending H&C application made on their behalf.\n\nOn September 5, 2006, the appellants filed an H&C application which was returned to them for insufficient funds. The application was resubmitted on December 8, 2006, this time with the proper funds. During that period, the appellants also filed a pre-removal risk assessment (a “PRRA”) which was refused. As a result, the appellants were served with a direction to report for removal from Canada on January 18, 2007.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-3", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 9–12", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellants having purchased airline tickets for themselves and their children for a return to Argentina on February 15, 2007, their removal was deferred to that date so as to allow them extra time to make necessary arrangements for their departure from Canada. I should point out here that the appellants have two Canadian-born children, Yan Sebastian who is 7 seven years and Zoe who is 4 years old (respectively 5 and 2 years old at the time of the enforcement officer’s decision)..\n\nNotwithstanding the foregoing, on January 26, 2007, the appellants made a further request to have their removal deferred, i.e. that deferral be granted until such time as their H&C application had been decided. On January 29, 2007, the enforcement officer refused to defer their removal.\n\nThis led the appellants to seek leave of the Federal Court to commence a judicial review application of the enforcement officer’s decision. On February 9, 2007, O’Keefe J. stayed the appellants’ removal from Canada until a decision had made on their judicial review application and on October 19, 2007, leave to pursue a judicial review was granted by the Federal Court.\n\nThe appellants’ judicial review application was heard by Dawson J. on January 17, 2008. She dismissed it on March 13, 2008. It is to that decision that I now turn. DECISION OF THE FEDERAL COURT", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-4", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dawson J. found the appellants’ judicial review application to be moot. In her view, a decision on the merits of the application would not resolve any controversy between the parties. The substance of the learned Judge’s reasoning appears from paragraphs 33 to 38 of her Reasons, which I reproduce: [33] The applicants are subject to a valid removal order and were directed to report for removal on January 18, 2007, on Air Canada flight #92. In order to issue the direction to report, the CBSA was first required to make a number of travel arrangements, including ensuring the availability of travel documents, an itinerary and airline tickets, and to notify the airline of its requirement to carry a foreign national from Canada. [34] The effect of the stay issued by the Court was to render those arrangements nugatory when the date scheduled for removal passed and the applicants remained in Canada. Whether the Court now decides that the decision of the enforcement officer was reasonable or not, the applicants have received the deferral that the officer refused. It is now an abstract question whether the enforcement officer ought to have deferred removal. [35] For the following reasons, I can see no practical effect on the rights of the parties if this case is decided on its merits. If the case is decided and dismissed, the stay will come to an end, the CBSA can make new removal arrangements, and the applicants can request deferral again. That same result will occur if the application is allowed on the same basis as in Samaroo, cited above. The validity of the removal order is not affected; the applicants remain subject to removal. [36] In either event, the parties will only have the benefit of the Court's view of the propriety of removal on stale-dated facts.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-5", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 13", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the exercise of discretion to defer removal is very fact-based. There is no way of knowing whether, since the decision at issue was made, there have been intervening circumstances of risk, pregnancy, birth, illness, or the like. Further, the jurisprudence of the Court is to the effect that the length of time that a humanitarian and compassionate application has been outstanding is a relevant consideration when considering requests for deferral. In the present case, the applicants' humanitarian and compassionate application has now been outstanding for an additional 12 months. A decision on stale facts will be of little use to the parties if further removal arrangements are made. [37] Even if the application is allowed, remitted to a new officer for determination and updated information about the applicants' circumstances is obtained, the parties will be in the same position as if the Court had dismissed the application, either on the merits or on the basis of mootness, and new removal arrangements were made. [38] Thus, any decision on the merits of this application will not resolve any controversy between the parties. The application is therefore moot and, further, no useful purpose would be served by determining the application on its merits. [Emphasis added]", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-6", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 14–15", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Dawson J. then went on to deal with the respondent’s argument that the proper characterization of the controversy between the parties was whether the appellants ought to be removed before their H&C application was dealt with. In Dawson J.’s view, that characterization was in error. She explained her opinion as follows at paragraphs 44 and 45: [44] The officer is charged with the duty of effecting removal as soon as is “reasonably practicable.” Equally, subsection 48(2) of the Act requires the subject of an enforceable removal order to leave Canada immediately. In the face of a looming removal date, the officer is presented with a series of facts that are said to warrant deferral at that point in time. The officer then decides whether the facts are such to render removal impracticable, and thus relieve the applicant of his or her obligation to leave immediately. For example, the officer may be asked to defer removal because a humanitarian and compassionate application has been outstanding for 18 months at the time of removal. The officer is not asked to consider, and does not consider, whether removal would be deferred if the application had instead been outstanding for 30 months. [45] For that reason, I find that the proper characterization of the dispute is whether an applicant should be removed, and is obliged to leave, on the scheduled removal date. [Emphasis added]\n\nDawson J. also declined to exercise her discretion to decide the judicial review application. Although she was of the view that an adversarial relationship still existed between the parties, deciding the case on the merits would have, in her view, no practical effect or useful purpose with regard to the parties’ rights.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-7", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 16–17", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I should point out that Madam Justice Dawson’s decision is only one of a number of recently-determined cases by the Federal Court where it has been held that a judicial review application of an enforcement officer’s decision refusing to defer a person’s removal from Canada is moot (see: Higgins v. M.P.S.E.P., 2007 FC 377; Solmaz v. M.P.S.E.P., 2007 FC 607; Maruthalingam v. M.P.S.E.P., 2007 FC 823; Vu v. Minister of Citizenship and Immigration, 2007 FC 1109; Madani v. M.P.S.E.P., 2007 FC 1168; Adams v. M.P.S.E.P., 21 November 2007 (Court file IMM-4121-07) (F.C.); Kovacs v. M.P.S.E.P., 2007 FC 1247; Baron v. M.P.S.E.P., 2008 FC 341; Islami v. M.P.S.E.P., 2008 FC 364; Leung v. M.P.S.E.P., 17 April 2008 (Court file IMM-3712-07) (F.C.); Palka v. M.P.S.E.P., 2008 FC 342; Lewis v. M.P.S.E.P., 2008 FC 719; and Gumbura v. M.P.S.E.P., 2008 FC 833). THE PARTIES’ SUBMISSIONS\n\nThe appellants submit that the Judge mischaracterized the nature of the dispute between the parties as being “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date.” Rather, the appellants contend that they had requested that their removal from Canada be deferred “pending a determination of their H&C application.” Therefore, the dispute between the parties was not simply whether the appellants’ removal should proceed or not on the scheduled removal date, but whether it should be deferred pending determination of the H&C application. The appellants submit that this controversy remained live at the time of the judicial review application hearing, and remains alive today, since the decision on the appellants’ H&C application remains pending.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-8", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 18–19", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the alternative, the appellants submit that the Judge erred in declining to exercise her discretion, even if the judicial review application was moot. The appellants contend that the Judge erred in finding that there would be no practical effect on the rights of the parties if she decided the case.\n\nWith respect to the decision challenged by the judicial review application, the appellants submit that this Court should find that the enforcement officer erred in refusing to defer their removal pending the determination of their outstanding H&C application. They submit that a very long time has passed since they first attempted to file an H&C application and that the best interests of their Canadian children militate in favour of a deferral.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-9", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 20–21", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent submits, as the appellants do, that the judicial review application is not moot. He argues that the correct characterization of the controversy between the parties is whether the appellants should be removed prior to the happening of a particular event, i.e. prior to the determination of their pending H&C application. It is then not the passing of the scheduled removal date which renders the judicial review application moot, but the happening of the event. The respondent disagrees with the Judge’s conclusion that a determination on the merits of the application would be of little use to the parties, and argues that a decision on the merits of the enforcement officer’s decision would provide a real remedy to the parties. Furthermore, the respondent submits that the mootness determination yields an inequitable outcome, since all stay motions where a stay of removal is granted will pre-judge the outcome of the leave and judicial review application, essentially turning stay motions into judicial review applications on short notice and often on a deficient record. The respondent contends that it could not have been intended for the application of the tri-part test to have this effect (see: Manitoba (A.G.) v. Metropolitan Stores (MPS) Ltd., [1987] 1 S.C.R. 110; Toth v. Canada (M.E.I.) (1988), 86 N.R. 302 (F.C.A.); R.J.R. MacDonald Inc. v. Canada (A.G.), [1994] 1 S.C.R. 311).\n\nWith respect to the merits of the application, the respondent submits that the enforcement officer did not err in refusing to defer removal until a decision had been made on the appellants’ pending H&C application. The respondent argues that in light of section 48 of the Act, the Minister was bound to execute the removal order as soon as reasonably practicable.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-10", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 22–25", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, the respondent says that the enforcement officer considered all of the appellants’ circumstances, including the best interests of their children. THE ISSUES\n\nThe questions which we must determine in the present appeal are the following: 1. Did the Applications Judge err in law by dismissing the judicial review application for mootness and by refusing to exercise her discretion to hear the case? 2. If the answer to the first question is in the affirmative, did the enforcement officer make a reviewable error in refusing to defer the appellants’ removal from Canada pending the determination of their outstanding H&C application? ANALYSIS A. Standard of Review\n\nThere is no dispute between the parties that the appropriate standard of review with respect to the mootness issue is the correctness standard. I agree (See: Housen v. Nikolaisen, [2002] 2 S.C.R. 235).\n\nWith respect to the enforcement officer’s decision refusing to defer the appellants’ removal from Canada, I cannot see how it can be disputed that the applicable standard is that of reasonableness (See: Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190). B. Did the Applications Judge Err in Law by Dismissing the Judicial Review Application for Mootness and by Refusing to Exercise her Discretion to Hear the Case?", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-11", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 26–28", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Both the appellants and the respondent submit that the Judge erred in law in dismissing the application for judicial review on the basis that it was moot. They argue that a live controversy continues to exist between them and that it is not the passing of the scheduled date of removal, i.e. February 15, 2007, which renders the application moot. In their view, although put forward in slightly different terms, it is the rendering of a decision on the appellants’ H&C application that would render the judicial review moot.\n\nI have come to the conclusion that a live controversy still exists between the parties and that, as a result, the appellants’ judicial review application is not moot.\n\nTo begin with, it is important to make clear what the appellants were seeking when they requested deferral of their removal from Canada on February 15, 2007. As the enforcement officer says in her decision, the appellants’ request was put forward on the grounds that they had an outstanding H&C application [which the appellants say they had attempted to file in March 2003] and that it was in the best interest of their Canadian-born children that removal be deferred until the H&C application had been dealt with. In other words, the appellants were not simply asking that they not be removed on February 15, 2007, but that their removal not take place until the determination of their H&C application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-12", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 29–30", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I agree entirely with the parties that the determination of the mootness issue depends on the proper characterization of the controversy that exists between them. In this regard, the parties implicitly concede that if the characterization of the dispute as found by the Judge, i.e. “whether an applicant should be removed, and is obliged to leave, on the scheduled removal date” (paragraph 45 of her Reasons), is correct, then the judicial review application is moot. However, they submit that the proper characterization is whether the appellants should be removed prior to the determination of their H&C application. At paragraph 33 of his Memorandum of Fact and Law, the respondent formulates his submission as follows: 33. The correct characterization of the controversy, however, is whether an applicant should be removed prior to the happening of a particular event, such as prior to the determination of a pending H & C application. It is then not the passing of the removal date which renders the judicial review application moot, but the happening of the event. This characterization of whether removal is reasonably practicable prior to the happening of the event is entirely consistent with the enforcement officer’s mandate under section 48 of the IRPA to execute a removal order as soon as reasonably practicable. It is this characterization of the controversy that the Applications Judge should have adopted, and erred in failing to do so.\n\nSince the appellants’ H&C application had not been dealt with at the time of the hearing before the learned Applications Judge [and I am not aware of any determination having been made since Dawson J. rendered her decision], the parties take the position that the controversy still exists between them and thus that the matter is not moot.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-13", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 31–33", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the parties have properly characterized the nature of the controversy which exists between them. I find support for this view in the Reasons given by Strayer D.J. in Amsterdam v. M.C.I., 2008 FC 244, where he dismissed an application for judicial review of the decision of an enforcement officer who had refused to defer the applicant’s removal from Canada. Although Strayer J. was of the view that on the facts before him, the judicial review application was moot, he nonetheless exercised his discretion to decide the application on its merits.\n\nIn Amsterdam, supra, the applicant was scheduled to be removed from Canada on June 6, 2007. On May 31 of that year, he sought a deferral of his removal so as to allow him to attend a Family Court conference scheduled for July 31, 2007, and to see a medical specialist with whom he had an appointment on September 27, 2007. Notwithstanding this information, the enforcement officer advised the applicant on June 4, 2007, that it would not be appropriate to defer his removal from Canada.\n\nOn June 5, 2007, the applicant filed an application for leave and for judicial review and he applied for a stay of removal, which was successful. Leave to commence a judicial review application was subsequently granted and the application on its merits was heard by Strayer J. on February 12, 2008.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-14", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 34–35", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "As I indicated earlier, Strayer J. believed that the application was moot. At paragraph 11 of his Reasons, he said the following: [11] I am satisfied that the judicial review of the Enforcement Officer’s refusal to defer removal is moot due to a stay having been issued by this Court to permit the Applicant’s presence in Canada for two events which have long since passed, the very events for which delay was refused in the decision under review. The evidence put before the Court was that it was necessary that the Applicant remain in Toronto to be present at a Family Court Case Conference in the Ontario Superior Court set for July 31, 2007 and for an appointment with a specialist which, by the date of the stay hearing, had been fixed for September 27, 2007. [Emphasis added]\n\nAs I also indicated earlier, Strayer J. then went on, notwithstanding his view on the mootness issue, to deal with the merits of the application. After concluding that the enforcement officer’s decision was not unreasonable, he dealt with a request by the applicant that he certify a question very similar to the one certified in this appeal. The question read as follows: Where an applicant has filed an application for leave and judicial review of a decision not to defer the implementation of a Removal Order outstanding against him or her, does the fact that the applicants’ removal is subsequently halted by operation of a stay Order issued by this Court render the underlying judicial review application moot?", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-15", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 36–37", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Strayer J. was of the view that the above question ought not to be certified. In so concluding, he gave the following explanation at paragraph 15 of his Reasons: [15] Nevertheless, I am not prepared to certify such a question. In the first place if I did, and an appeal were taken, an answer to this question would not be determinative of this case because I have determined that the judicial review should also be dismissed on its merits apart from being moot. Secondly, with respect I do not think it is a serious question requiring an answer. There seems to be a wide measure of consensus in this Court, indicated in the cases cited above, that such a question should be answered in the affirmative. I find it hard to see how it could be otherwise: if the complaint in the judicial review is that the Enforcement Officer did not defer removal until the occurrence of some event which the Applicant considered justified the deferral, and as a result of a stay granted by this Court that event has in the meantime occurred. In such circumstances there can be no practical effect of a judicial review decision. [Emphasis added]\n\nAs I understand Strayer J.’s Reasons, it is the passing of the events in respect to which the applicant was seeking a deferral of his removal, i.e. a Family Court conference and a medical appointment, which rendered the judicial review application moot. In those circumstances, as Strayer J. says above, “… there can be no practical effect of a judicial review decision”. I cannot but agree with that statement in light of the facts before the learned Judge. It is clear, however, that Strayer J. did not conclude that the application before him was moot simply because the removal date had come and gone, which is the position adopted by the Applications Judge.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-16", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 38–40", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in my view, since the event which the appellants invoke in seeking a deferral has not occurred, I cannot see how it can be said that there is no existing controversy between the parties and that no practical effect can result from a decision on the judicial review. While the specific timing of the removal arrangements which had been made prior to the issuance of the stay by O’Keefe J. is no longer valid, this does not, in my respectful view, render the issues raised in the judicial review application moot. The concrete or real controversy between the parties, i.e. the execution of the removal order prior to the determination of the appellants’ H&C application, remains alive.\n\nI will briefly examine what effect a decision on the merits of the appellants’ judicial review application might have. Prior to such a determination, the appellants could not be removed by reason of the stay granted by O’Keefe J. However, different consequences will follow, depending on the determination of the application.\n\nShould this Court decide the judicial review in favour of the appellants, the matter would then be remitted to an enforcement officer for redetermination in the light of the Court’s Reasons. On redetermination, the enforcement officer might grant the request for deferral until the H&C application has been dealt with. As a result of such a determination, the appellants would not be removed until a negative decision, if that be the case, had been rendered on their H&C application. On the other hand, the enforcement officer might again refuse to defer removal and the appellants might challenge that decision by way of a new judicial review application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-17", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 41–43", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Should the Court dismiss the judicial review application on its merits, the stay order would no longer be in effect and a new removal date would most likely be scheduled. While it is true that the appellants could once again ask the enforcement officer for a deferral, new facts, in my view, would have to be put forward, failing which the likely scenario is that the enforcement officer would dismiss the request for deferral. It is also possible that absent new facts, the appellants would not seek a deferral and would leave Canada.\n\nI might add that should the appellants, in the absence of additional material facts, seek a deferral which results in a refusal by the enforcement officer, and should the appellants, in those circumstances, seek to obtain leave to commence a judicial review application and to obtain a stay of removal, it would certainly be open to the Federal Court to take the view that the appellants’ proceedings constitute an abuse of process and deal with those proceedings accordingly.\n\nI am therefore of the view that should this Court dispose of the judicial review application on its merits, it cannot be said that the parties would be in the same position as if the Court had dismissed the application for mootness. I would also add that mootness does not necessarily follow because a decision on the merits will not entirely settle the debate between the parties.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-18", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 44–46", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "A final comment on this issue. In Borowski v. Canada (A.G.), [1989] 1 S.C.R. 342, at paragraphs 29 to 42, the Supreme Court identified three factors that a court should consider in deciding whether or not to exercise its discretion to hear the merits of an action or an application for judicial review which it finds to be moot: (1) the existence of an adversarial relationship between the parties; (2) the concern for judicial economy; and (3) the need for the court not to intrude into the legislative sphere.\n\nIn the present matter, it is undisputed that there remains an adversarial relationship between the parties with respect to the execution of a removal order prior to the determination of an H&C application. With respect to judicial economy, a decision from this Court on whether or not a pending H&C application and the interests of Canadian-born children in that specific context warrant a deferral of removal will certainly provide guidance to parties in future cases as well as to the parties in this appeal. Furthermore, these cases are of a recurring nature, in that the dismissal of a judicial review application for mootness means that the case will be returned to the enforcement officer to set a new date for removal, which will likely trigger a new request for deferral of removal and potentially a new application for a stay of removal. Lastly, a decision on the merits of the application will clearly not intrude into the legislative scheme.\n\nBearing in mind the factors identified by the Supreme Court in Borowski, supra, had I been of the view that the application was moot, I would have had no hesitation in deciding that this Court ought to deal with the merits of the application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-19", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 47–48", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "I now turn to the second issue. C. Did the Enforcement Officer Err in Refusing to Defer the Appellants’ Removal from Canada Pending a Determination of Their Outstanding H&C Application?\n\nIn dealing with the enforcement officer’s discretion to defer removal pursuant to section 48 of the Act, it is important to keep in mind the wording of that provision, which is as follows: 48. (1) A removal order is enforceable if it has come into force and is not stayed. (2) If a removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as soon as is reasonably practicable. [Emphasis added] 48. (1) La mesure de renvoi est exécutoire depuis sa prise d’effet dès lors qu’elle ne fait pas l’objet d’un sursis. (2) L’étranger visé par la mesure de renvoi exécutoire doit immédiatement quitter le territoire du Canada, la mesure devant être appliquée dès que les circonstances le permettent. [Non souligné dans l’original] Thus, where a removal order is enforceable, any person subject thereto must leave the country and the enforcement officer is bound to enforce the order “as soon as is reasonably practicable”.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-20", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 49–50", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is trite law that an enforcement officer’s discretion to defer removal is limited. I expressed that opinion in Simoes v. Canada (M.C.I.), [2000] F.C.J. No. 936 (T.D.) (QL), 7 Imm.L.R. (3d) 141, at paragraph 12: [12] In my opinion, the discretion that a removal officer may exercise is very limited, and in any case, is restricted to when a removal order will be executed. In deciding when it is \"reasonably practicable\" for a removal order to be executed, a removal officer may consider various factors such as illness, other impediments to travelling, and pending H & C applications that were brought on a timely basis but have yet to be resolved due to backlogs in the system. For instance, in this case, the removal of the Applicant scheduled for May 10, 2000 was deferred due to medical reasons, and was rescheduled for May 31, 2000. Furthermore, in my view, it was within the removal officer’s discretion to defer removal until the Applicant’s eight-year old child terminated her school year.\n\nI further opined that the mere existence of an H&C application did not constitute a bar to the execution of a valid removal order. With respect to the presence of Canadian-born children, I took the view that an enforcement officer was not required to undertake a substantive review of the children’s best interests before executing a removal order.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-21", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 51", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsequent to my decision in Simoes, supra, my colleague Pelletier J.A., then a member of the Federal Court Trial Division, had occasion in Wang v. Canada (M.C.I.), [2001] 3 F.C. 682 (F.C.), in the context of a motion to stay the execution of a removal order, to address the issue of an enforcement officer’s discretion to defer a removal. After a careful and thorough review of the relevant statutory provisions and jurisprudence pertaining thereto, Mr. Justice Pelletier circumscribed the boundaries of an enforcement officer’s discretion to defer. In Reasons which I find myself unable to improve, he made the following points: - There are a range of factors that can validly influence the timing of removal on even the narrowest reading of section 48, such as those factors related to making effective travel arrangements and other factors affected by those arrangements, such as children’s school years and pending births or deaths. - The Minister is bound by law to execute a valid removal order and, consequently, any deferral policy should reflect this imperative of the Act. In considering the duty to comply with section 48, the availability of an alternate remedy, such as a right to return, should be given great consideration because it is a remedy other than failing to comply with a positive statutory obligation. In instances where applicants are successful in their H&C applications, they can be made whole by readmission. - In order to respect the policy of the Act which imposes a positive obligation on the Minister, while allowing for some discretion with respect to the timing of a removal, deferral should be reserved for those applications where failure to defer will expose the applicant to the risk of death, extreme sanction or inhumane treatment.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-22", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 51–53", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to H&C applications, absent special considerations, such applications will not justify deferral unless based upon a threat to personal safety. - Cases where the only harm suffered by the applicant will be family hardship can be remedied by readmitting the person to the country following the successful conclusion of the pending application. I agree entirely with Mr. Justice Pelletier’s statement of the law.\n\nWith these principles in mind, I now turn to the enforcement officer’s decision.\n\nIt is clear from the enforcement officer’s decision that she considered all of the relevant facts which were before her. First, she addressed the fact that the appellants had a pending H&C application. She correctly noted that the filing of such an application, at a late stage in the removal process, was not per se an impediment to removal. She remarked that the appellants had been informed in 2004 that no H&C application had been filed by them, contrary to what they apparently believed, and that they waited until 2006 to make their application. As a result, she was of the view that deferral on that ground was not warranted.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-23", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 54–56", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The enforcement officer then turned her attention to the best interests of the children. She was of the view that if the children left Canada with their parents, “any kind of emotional disturbance the children may suffer due to their removal from Canada will likely be one of a temporary nature”. She also noted that the children were young and that they could easily adapt to a new environment. She also noted that no evidence had been adduced that the children could not enrol in an English medium school where they could learn English as a first or second language. Lastly, she indicated that since both parents would be present in the children’s lives in Argentina and that the appellants’ parents also lived in Argentina, the children would have adequate emotional support and an existing support base in their new country.\n\nThe enforcement officer concluded her decision by making it clear that had there been a true impediment to removal or if a decision on the H&C application had been imminent, she would have granted a deferral.\n\nIn making their submission that the enforcement officer made reviewable errors, the appellants make the following points.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-24", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 57", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the best interests of the children, they state that the officer ought to have deferred their removal pending the determination of their H&C application so as to fulfill Canada’s obligations under the Convention on the Rights of the Child. In my view, this argument is without merit. The enforcement officer considered the children’s best interests and concluded that no serious practical impediment existed to prevent removal of their parents to Argentina. The fact that the appellants intend to take their children with them to Argentina and that the children might not be able to return until their parents regularize their status in Canada or until they become adults is not, in my view, an impediment to the removal of the parents. The jurisprudence of this Court has made it clear that illegal immigrants cannot avoid the execution of a valid removal order simply because they are the parents of Canadian-born children (see: Legault v. M.C.I, 2002 FCA 125, para. 12; see also with respect to international law: Baker, supra; Langner v. M.E.I., [1995] F.C.J. No. 469 (C.A.) (QL)). I might add that the officer went further than required in her consideration of the children’s best interests. As I stated in Simoes, supra, an enforcement officer has no obligation to substantially review the children’s best interest before executing a removal order. I believe that Pelletier J.A.’s Reasons in Wang, supra, support this view.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-25", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 58–59", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to their pending H&C application, the appellants submit that the enforcement officer erred in failing to have regard to the special circumstances surrounding their application. They say that the issue was not whether they had submitted an application in 2003 or 2004, but rather that they had attempted, through their former attorney, to submit such an application in March 2003, adding that for reasons unknown to them, the application had never been received in Vegreville. They also say that it is only in 2006 that they became aware of the fact that their March 2003 application had never been received. The appellants further point out that a new delay occurred when a second application in September 2006 was returned to them by reason of insufficient funds, which application they resubmitted in early December 2006. It is for these reasons, the appellants submit, that their attorneys requested that their H&C application be expedited because of almost a four year delay due to no fault on their part.\n\nThus, in the appellants’ submission, the enforcement officer asked herself the wrong question when she focussed her attention on whether the “original” H&C application had been submitted in 2003 or 2004, and on the fact that their second application had been filed late in the day.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-26", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 60–63", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, these arguments cannot succeed. First, I have not been persuaded that the enforcement officer made a reviewable error in her review and consideration of the evidence. What the appellants are asking us, in effect, is to reassess the evidence so as to reach a different conclusion. In my view, that is not open to us. Second, in the light of the principles enunciated in both Simoes, supra and Wang, supra, I fail to see on what ground this Court could interfere with the enforcement officer’s decision.\n\nI therefore conclude that the enforcement officer’s decision to refuse deferral of the appellants’ removal from Canada was reasonable and that the decision must stand.\n\nThis is sufficient to dispose of the appeal. However, before concluding, I feel compelled to make a few additional remarks.\n\nIt is important to note that in concluding that a deferral was not warranted in the circumstances before her, the enforcement officer emphasized the fact that the appellants had failed to report for their pre-removal interviews of January 21, 2006. The enforcement officer also emphasized the fact that it had been necessary to issue warrants against the appellants, which were executed in March and July of 2006. She could also have emphasized the fact that the appellants, in order to delay their removal scheduled for January 18, 2007, had undertaken to leave the country with their children on February 15, 2007, which undertaking they failed to respect. The enforcement officer could have also considered relevant the fact that the departure orders made against the appellants at the time they filed their refugee claims had become effective on May 30, 2002.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-27", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 64", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Events of this type, i.e. where persons fail to comply with the requirements of the Act or act in a way so as to prevent the enforcement thereof, should always be high on the list of relevant factors considered by an enforcement officer. It is worth repeating what this Court said at paragraph 19 of its Reasons in Legault, supra. Although the issue before the Court in Legault, supra, pertained to the exercise of discretion in the context of an H&C application, the words of Décary J.A. are entirely apposite to the exercise of discretion by an enforcement officer: [19] In short, the Immigration Act and the Canadian immigration policy are founded on the idea that whoever comes to Canada with the intention of settling must be of good faith and comply to the letter with the requirements both in form and substance of the Act. Whoever enters Canada illegally contributes to falsifying the immigration plan and policy and gives himself priority over those who do respect the requirements of the Act. The Minister, who is responsible for the application of the policy and the Act, is definitely authorised to refuse the exception requested by a person who has established the existence of humanitarian and compassionate grounds, if he believes, for example, that the circumstances surrounding his entry and stay in Canada discredit him or create a precedent susceptible of encouraging illegal entry in Canada. In this sense, the Minister is at liberty to take into consideration the fact that the humanitarian and compassionate grounds that a person claims are the result of his own actions. [Emphasis added]", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-28", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 65", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, if the conduct of the person seeking a deferral of his or her removal either discredits him or creates a precedent which encourages others to act in a similar way, it is entirely open to the enforcement officer to take those facts into consideration in determining whether deferral ought to be granted. Neither enforcement officers nor the courts, for that matter, should encourage or reward persons who do not have “clean hands”.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-29", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 66", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "One last remark. In her discussion of the mischief which might arise as a result of the view that applications such as the one before us in this appeal are moot by reason of the passing of the scheduled removal date, Madam Justice Dawson made a number of highly relevant remarks. One of these remarks is found at paragraph 65 of her Reasons, where she says: [65] Further, the potential for abuse will be mitigated significantly by the Court's continued discipline when considering stay requests and, where a stay is granted, by careful consideration by the CBSA, before new removal arrangements are made, of the serious issue identified by the Court. It should be remembered that, for a stay to be granted, the Court will have identified at least one issue that carries with it the likelihood of success on the underlying application. It is not enough for the Court to simply find that an issue is not frivolous or vexatious. (See: Wang, cited above). […] [Emphasis added] These comments take me back to Pelletier J.A.’s Reasons in Wang, supra, where he dismissed the motion before him for a stay of removal because the applicant had not satisfied him that the underlying application raised a serious issue. This conclusion was the result of his view that on such a motion, in determining the “serious issue” prong of the tripartite test enunciated in Manitoba (A.G.) v. Metropolitan Stores Ltd., [1987] 1 S.C.R. 110 (and adopted by this Court for the purposes of determining applications for a stay of removal in Toth v. Canada (Minister of Employment and Immigration) (1988), 86 N.R. 302 (F.C.A.), [1988] F.C.J. No. 587), the Judge ought to “go further and closely examine the merits of the underlying application” (paragraph 10 of his Reasons).", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-30", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 66–68", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "In other words, the Judge should take a hard look at the issue raised in the underlying application.\n\nWhile I agree entirely with my colleague’s approach to the “serious issue” prong of the tripartite test in the context of a motion to stay a removal order, I would add the following. In determining whether a serious issue exists so as to warrant the granting of a stay of removal, the Judge hearing the motion should clearly have in mind, first of all, that the discretion to defer the removal of a person subject to an enforceable removal order is limited, as explained in Simoes, supra, and, particularly, in Wang, supra. Second, the Judge should also have in mind that the standard of review of an enforcement officer’s decision is that of reasonableness. Thus, for an applicant to succeed on a judicial review challenge of such a decision, he or she must be able to put forward quite a strong case. In my view, the appellants herein clearly did not have such a case to put forward.\n\nHad O’Keefe J. turned his mind to the limited nature of the enforcement officer’s discretion and to the applicable standard of review, he would not have concluded that the judicial review application raised a serious issue and, hence, would not have granted a stay.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-31", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 69–72", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is also clear, in my respectful opinion, that there was no basis for him to conclude that irreparable harm would occur if the removal order was not stayed. As this Court and the Federal Court have constantly repeated, one of the unfortunate consequences of a removal order is hardship and disruption of family life. However, that clearly does not constitute irreparable harm. To paraphrase the words of Pelletier J.A. found at paragraph 88 of his Reasons in Wang, supra, family hardship is the unfortunate result of a removal order which can be remedied by readmission if the H&C application is successful. Further, the fact that the appellants’ children might have to pursue their education in Spanish, because of their parents’ removal to Argentina, clearly does not constitute irreparable harm.\n\nAs a result, I would dismiss the appeal and I would answer the certified question as follows: Because the underlying application for landing remains outstanding at the date the Court considers the application for judicial review, there remains a “live controversy” between the parties and, as a result, the matter is not rendered moot by the passing of the scheduled removal date. “M. Nadon” J.A. “I concur. Alice Desjardins J.A.” BLAIS J.A. (Reasons concurring in the result)\n\nI have read the reasons of my colleague, Nadon J.A., and I respectfully disagree in part.\n\nI will rely on the facts as presented by the Federal Court judge, Justice Dawson, and my colleague in lieu of reproducing them here.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-32", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 73–76", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to my colleague’s analysis of the enforcement officer’s refusal to defer the appellants’ removal, I agree. The determination made by the enforcement officer was well within her narrow discretion, was well reasoned and was within the parameters of previous statements of this Court and the Court below.\n\nWith respect to my colleague’s strong statement regarding the granting of a stay on the basis that the pending judicial review of the enforcement officer’s refusal constituted a serious issue, I firmly agree with both my colleague and with Justice Dawson. Recently, claimants have entered into an abusive cycle of deferral requests, judicial review applications and stay of removal applications. This abusive cycle can be mitigated if judges considering stay applications properly determine whether a serious issue exists by reviewing the judicial review application for at least one issue with a probability of success. The judicial review underlying the application for a stay of removal in this case reveals little probability of success considering the enforcement officer’s discretion and the ample support she cites in her reasons. The decision granting the appellants’ stay has caused them to remain in Canada for an additional two years, allowing for their children to become more settled and for adaptation to be more difficult should the appellants and their children to return to Argentina.\n\nWith respect, I must disagree with my colleague’s conclusion in regards to the certified question of mootness.\n\nThe parties argue, and my colleague agrees, that the characterization of the root controversy of the judicial review involves whether the appellants should be removed prior to the determination of their pending humanitarian and compassionate (H&C) application.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-33", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 77–78", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "While it is true that the bases of the appellants’ deferral request were the best interest of their children and the determination of their H&C application, the decision for review in this case is whether the enforcement officer properly refused to defer the appellants’ removal in January, 2007. It is not whether the enforcement officer properly determined that the removal would at no time take place before the determination of the H&C application. This is clear from the enforcement officer’s notes to file, where she wrote: In conclusion, this officer realizes that she has limited discretion to defer removal. She would do so if there is [sic] an impediment to removal or if a decision was imminent on the H&C application. However, this is not the case.\n\nIt is of no consequence to determine whether the enforcement officer properly refused the request to defer in January, 2007 since that removal date has passed. In addition, the circumstances will have changed such that the enforcement officer’s conclusions may no longer be pertinent to the facts as they now stand. In my view, Justice Dawson was correct in characterizing the dispute as whether the appellants should have been required to leave on the scheduled removal date. Further, since the granting of a stay has allowed the appellants to receive the deferral that the enforcement officer refused, the review of the enforcement officer’s decision will not change the factual consequence.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-34", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 79–80", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "The parties argue that the controversy is whether the appellants should be removed prior to the determination of the H&C application. However, this was not the question before the enforcement officer. In fact, the conclusion of the enforcement officer regarding the lack of imminence of a determination on the H&C application makes it clear that her decision was temporally based.\n\nBy virtue of section 48(2) of the Immigration and Refugee Protection Act, R.S.C. 2001, c. 29 (IRPA), once a “removal order is enforceable, the foreign national against whom it was made must leave Canada immediately and it must be enforced as soon as is reasonably practicable.” I agree with my colleague that jurisprudence is conclusive that the enforcement officer’s discretion is limited. However, ultimately an enforcement officer is intended to do nothing more than enforce a removal order. While enforcement officers are granted the discretion to fix new removal dates, they are not intended to defer removal to an indeterminate date. On the facts before us, the date of the decision on the H&C application was unknown and unlikely to be imminent, and thus, the enforcement officer was being asked to delay removal indeterminately. An indeterminate deferral was simply not within the enforcement officer’s powers. (my emphasis)", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-35", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 81–83", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Over the years, the duties of enforcement officers have not changed, and yet, the bases upon which applicants rely to obtain deferrals have dramatically increased. I am of the view that the scope of the enforcement officer’s discretion cannot be changed by virtue of the requests made. An enforcement officer’s role is not to assess the best interests of the children or the probability of success of any application. An enforcement officer’s role should remain limited and deferral should be contemplated in very limited circumstances.\n\nThe legislation has not, to my knowledge, provided a new step to claimants who desire yet another assessment of their circumstances. Claimants already have the refugee application process, the pre-removal risk assessment (PRRA) process and the H&C application in addition to judicial reviews of those processes and the stay before removal.\n\nIn this case, it appears that the claimants want to open yet another avenue of review by asking the enforcement officer to reassess information that has already been examined by administrative tribunals and that was the subject of judicial review. For the enforcement officer to comply with this request for reassessment would be akin to the enforcement officer making a quasi-judicial order without the benefit of hearing from opposing counsel. It’s time to stop this abusive cycle.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-36", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 84–85", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "To further illustrate why the question before Justice Dawson was moot, consider the following hypothetical situation: if Justice O’Keefe had not granted the stay, and the appellants had been removed to Argentina, the judicial review before Justice Dawson would still have proceeded. Seeing as the appellants had already been removed on the scheduled removal date, Justice Dawson would likely still determine that the issue was moot, for the decision regarding the specified date had passed. But, if instead of making a finding of mootness, Justice Dawson found that the enforcement officer had made an error in not deferring the removal date, what would be the result? Would the appellants be permitted to return to Canada just for a second removal date to be set to have them removed? Would they request yet another deferral from a second enforcement officer? The possibility risks nonsense.\n\nThe more likely consequence is that the appellants would wait in Argentina for a determination of their H&C application and, if the application is successful, would be readmitted.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-37", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 86", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Under subsection 11(1) of the IRPA, a foreign national wishing to establish permanent resident status must apply for a visa before entering Canada. The IRPA makes it clear that H&C applications are intended to be used only as exceptions to this requirement. H&C applications are meant to allow for an application to be processed from within Canada where the Minister considers that humanitarian and compassionate grounds make this exemption justified: 25. (1) The Minister shall, upon request of a foreign national in Canada who is inadmissible or who does not meet the requirements of this Act, and may, on the Minister’s own initiative or on request of a foreign national outside Canada, examine the circumstances concerning the foreign national and may grant the foreign national permanent resident status or an exemption from any applicable criteria or obligation of this Act if the Minister is of the opinion that it is justified by humanitarian and compassionate considerations relating to them, taking into account the best interests of a child directly affected, or by public policy considerations. (2) The Minister may not grant permanent resident status to a foreign national referred to in subsection 9(1) if the foreign national does not meet the province’s selection criteria applicable to that foreign national. 25.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-38", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "paras 86–88", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "(1) Le ministre doit, sur demande d’un étranger se trouvant au Canada qui est interdit de territoire ou qui ne se conforme pas à la présente loi, et peut, de sa propre initiative ou sur demande d’un étranger se trouvant hors du Canada, étudier le cas de cet étranger et peut lui octroyer le statut de résident permanent ou lever tout ou partie des critères et obligations applicables, s’il estime que des circonstances d’ordre humanitaire relatives à l’étranger — compte tenu de l’intérêt supérieur de l’enfant directement touché — ou l’intérêt public le justifient. (2) Le statut ne peut toutefois être octroyé à l’étranger visé au paragraphe 9(1) qui ne répond pas aux critères de sélection de la province en cause qui lui sont applicables.\n\nH&C applications are not intended to obstruct a valid removal order. Where a PRRA has revealed that the applicants are not at risk if they are returned, then the applicants are intended to make future requests for permanent residence from their home country.\n\nIn the appellants’ case, the H&C application is still pending. It is my view that this still does not prevent their removal. Removing the appellants will not cause irreparable harm to them or their Canadian-born children. Should a new removal date be scheduled, the appellants are likely to ask the enforcement officer for a deferral. I believe my colleague’s indication that new facts would need to be put forward to support such a request is optimistic. These appellants have continued to raise the same arguments throughout their dealings with immigration officials in Canada and the likelihood that they will continue to raise these arguments, or versions thereof consistent with the passing of time, is high.", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-36347-39", + "doc_type": "caselaw", + "act_code": "2009 FCA 81", + "act_short": "Baron", + "act_name": "Baron v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Baron v. Canada (Public Safety and Emergency Preparedness), 2009 FCA 81", + "marginal_note": "para 89", + "heading": "Deferral of removal by an enforcement officer; the narrow scope of the discretion to defer", + "part": "Federal Court of Appeal", + "division": "", + "text": "Therefore, I would dismiss this appeal with costs and answer the certified question as follows: The removal date having passed, the determination of the reasonableness of the enforcement officer’s refusal to defer the removal date in January 2007 is without consequence and therefore the matter is rendered moot. “Pierre Blais” J.A. FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-165-08 STYLE OF CAUSE: SERGIO ADRIAN BARON and MARIELA FERNANDA RIQUELME v. THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, ON DATE OF HEARING: December 1, 2008 REASONS FOR JUDGMENT BY: NADON J.A. CONCURRED IN BY: DESJARDINS J.A. REASONS CONCURRING IN THE RESULT BY: BLAIS J.A. DATED: March 13, 2009 APPEARANCES: D. Clifford Luyt FOR THE APPELLANTS Amina Riaz Maria Burgos Manuel Mendelzon FOR THE RESPONDENT SOLICITORS OF RECORD: D. Clifford Luyt, Barrister and Solicitor Toronto, ON FOR THE APPELLANTS John H. Sims, Q.C. Deputy Attorney General of Canada FOR THE RESPONDENT", + "current_to": "2009-03-13", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/36347/index.do" + }, + { + "id": "fca-520921-1", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 1–3", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Maria Camila Galindo Camayo is a citizen of Colombia. As a child, she and members of her family were found to be people in need of protection in Canada, based upon her mother having been targeted for extortion by the Fuerzas Armadas Revolucionarias de Colombia.\n\nWhen it came to the attention of the Minister of Citizenship and Immigration that Ms. Galindo Camayo had used a Colombian passport to take numerous trips to Colombia and other countries, the Minister commenced an application for the cessation of her protected person status. The Refugee Protection Division (RPD) of the Immigration and Refugee Board found that Ms. Galindo Camayo had voluntarily reavailed herself of the diplomatic protection of Colombia. As a result, the Minister’s application was granted, and Ms. Galindo Camayo’s claim for protection was deemed to have been rejected.\n\nIn reasons reported as 2020 FC 213, the Federal Court set aside the RPD’s decision on the basis that the RPD’s finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unreasonable. The Federal Court ordered that the matter be remitted to a differently constituted RPD panel for redetermination. The Federal Court did, however, certify the following questions: 1) Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27, c.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-2", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 3–5", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "27 (“IRPA”)] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? 2) If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? 3) If yes to Question 1, can evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] be relied on to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nI understand from the parties that the first question is no longer in issue as this Court has previously held that a minor who obtains refugee protection as a dependant under a parent’s claim is indeed subject to the same immigration consequences as the parent claimant: Canada (Minister of Citizenship and Immigration) v. Tobar Toledo, 2013 FCA 226.\n\nInsofar as the second question is concerned, the Minister asserts that the Federal Court erred in finding the RPD’s decision to be unreasonable. The Federal Court found that Ms. Galindo Camayo’s lack of knowledge of the Canadian immigration consequences of travelling internationally using a Colombian passport was sufficient to rebut the presumption of intent to reavail. According to the Minister, the state of the individual’s knowledge is not the legal test for cessation nor is it a factor for consideration under that test.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-3", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 6–8", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With respect to the third question, the Minister observes that refugee protection is available to individuals who can establish on a balance of probabilities that they would be at risk of facing persecutory treatment in their country of nationality. Implicit in such a finding is that the person cannot protect themselves from their agent of persecution or obtain such protection anywhere in that country. It is therefore inconsistent with a finding that a person is in need of protection for the individual to later claim that they are able to protect themselves sufficiently as to allow them to return to their country of nationality. The Minister says that the Federal Court thus erred in considering the fact that Ms. Galindo Camayo obtained private security while she was in Colombia as evidence that she did not intend to reavail herself of the protection of the state.\n\nFor the reasons that follow, I have concluded that the Federal Court did not err in finding that the Board’s decision was unreasonable. Consequently, I would dismiss the appeal. I would only answer the second and third questions and I would answer them in the affirmative.\n\nMs. Galindo Camayo was a minor when she arrived in Canada. She received protected person status in Canada in 2010, when she was 15 years old (for the sake of simplicity, the terms “person in need of protection”, “protected person”, and “refugee” will be used interchangeably in these reasons). Ms. Galindo Camayo returned to Colombia five times since 2010, taking her last trip in late 2016 and early 2017, when she was a 21-year-old college student.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-4", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 9–12", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Ms. Galindo Camayo travelled on a Colombian passport on each of these occasions. She initially used the passport that her mother had obtained for her. However, she turned 18 during her second trip to Colombia and she was advised by Colombian authorities that she had to apply for an adult passport in order to be able to return to Canada. Ms. Galindo Camayo received a new adult Colombian passport in August of 2013, returning to Canada shortly thereafter.\n\nIn addition to the five trips to Colombia that Ms. Galindo Camayo took after receiving protected person status, she visited Mexico three times, and she took trips to the United States and Cuba. Ms. Galindo Camayo travelled on her Colombian passport on each occasion.\n\nOn January 27, 2017, the Minister applied to cease Ms. Galindo Camayo’s protected person status, pursuant to subsection 108(2) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA). Subsection 108(2) provides that “[o]n application by the Minister, the Refugee Protection Division may determine that refugee protection … has ceased for any of the reasons described in subsection (1)”.\n\nParagraph 108(1)(a) of IRPA provides that “[a] claim for refugee protection shall be rejected, and a person is not … a person in need of protection … [if] the person has voluntarily reavailed themself of the protection of their country of nationality”. The full text of these and other relevant statutory provisions is attached as an appendix to these reasons.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-5", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 13–16", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Minister asserts that Ms. Galindo Camayo had voluntarily and intentionally reavailed herself of the protection of her country of nationality by obtaining a Colombian passport and by using it to travel to Colombia and elsewhere. As a result, the Minister says that Ms. Galindo Camayo’s claim for protected person status should be deemed to have been rejected.\n\nMs. Galindo Camayo argued before the RPD that she did not voluntarily reavail herself of Colombia’s protection under section 108 of IRPA by acquiring Colombian passports. It was her mother, and not Ms. Galindo Camayo herself, who had applied for her first passport while she was still a minor, and Ms. Galindo Camayo was compelled to obtain her second Colombian passport in 2013 in order to be able to return to Canada.\n\nMs. Galindo Camayo testified that she travelled to Colombia to assist her sick father and to volunteer for a humanitarian mission, and that she did not understand the consequences of her travel for her status in Canada. Ms. Galindo Camayo further stated that she did not avail herself of Colombia’s protection while she was there, as she hired armed private security guards to provide her with protection during each of her trips.\n\nThe RPD agreed with the Minister, finding that Ms. Galindo Camayo had voluntarily reavailed herself of Colombia’s protection as described in paragraph 108(1)(a) of IRPA. The Minister’s application for the cessation of Ms. Galindo Camayo’s status as a protected person was therefore allowed, and her claim for protection was deemed to have been rejected in accordance with subsection 108(3) of IRPA.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-6", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 17–19", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In coming to the conclusion that the Minister’s application should be granted, the RPD only focused on the cessation principles discussed in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, UNHCR, 2019, UN Doc. HCR/1P/4/ENG/REV.4 (Refugee Handbook). Although it acknowledged (at para. 19) that it was “not bound” by the Refugee Handbook and the guidelines set out in it, the RPD found them “useful and relevant”.\n\nThe RPD noted that in accordance with Article 1C(1) of the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 U.N.T.S. 137 (Refugee Convention) there are three implied criteria to be considered in determining whether cessation had occurred. These are: (1) Voluntariness: The refugee must have acted voluntarily; (2) Intention: The refugee must have intended by his or her actions to reavail him or herself of the protection of their country of nationality; and (3) Reavailment: The refugee must actually obtain state protection.\n\nIn reality, when the RPD decision is examined in its totality in light of the record before it, it is clear that the RPD fastened onto the Refugee Handbook and the particular wording of the Refugee Handbook as if it was domestic law that was binding on the RPD. At paragraph 17 of its reasons, the RPD set out the text of section 108 of IRPA, but it did not interpret it. Indeed, at no time did the RPD attempt to interpret section 108 by examining its text, context and purpose.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-7", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 20–22", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Accepting that on a proper interpretation of section 108 of IRPA the three criteria of voluntariness, intention and reavailment are part of the inquiry required by law, what do these terms mean? For example, what acts or statements are relevant to voluntariness or intention?\n\nThe questions can multiply and become more focused, especially in a fact-laden case such as the one at bar. Is the RPD to look solely at the actual subjective intention of the relevant individual and accept it, or is the RPD able to import an objective element into the analysis, such as the reasonableness of the actions and intentions of the relevant individual? These and other questions that can arise in a particular case involve questions of statutory interpretation: exactly when does section 108, properly interpreted, apply to allow the RPD to deem a person’s claim for refugee protection to have been rejected?\n\nInsofar as the question of voluntariness was concerned, the RPD accepted that Ms. Galindo Camayo did not act voluntarily in obtaining her Colombian passports. Her first passport was acquired by her mother when she was a minor, which was a matter outside Ms. Galindo Camayo’s control, and she was compelled to obtain her second Colombian passport in order to be able to leave the country.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-8", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 23–24", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD asserted, however, without any analysis of the requirements of section 108, that the acquisition of passports is not the only relevant factor to consider in assessing the voluntariness of Ms. Galindo Camayo’s actions, and that her use of those passports also had to be considered. In this regard, the RPD found that Ms. Galindo Camayo acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016, and there was insufficient evidence before it to establish that Ms. Galindo Camayo was compelled to use her Colombian passports to take any of these trips.\n\nWith respect to the question of Ms. Galindo Camayo’s intention in using her Colombian passports, the RPD was concerned with respect to her evidence regarding the need for her to care for her father in Colombia. It observed that Ms. Galindo Camayo’s father (who was a permanent resident of Canada) was actually in Canada during one of the periods that Ms. Galindo Camayo was in Colombia, purportedly caring for him there, and that he had visited Canada on numerous other occasions. The RPD further noted that Ms. Galindo Camayo claimed that her father had stayed in Colombia rather than come to Canada with the rest of his family, as he did not want to impose a burden on his family. It found, however, that this assertion was undermined by the fact that her father’s conduct regularly exposed Ms. Galindo Camayo to a dangerous situation in Colombia, thus imposing a significant burden on her.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-9", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 25–28", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Notwithstanding its concerns with respect to Ms. Galindo Camayo’s evidence on this point, the RPD did not find in clear and unmistakeable terms that her evidence lacked credibility: Hilo v. Canada (Minister of Employment and Immigration) (1991), 130 N.R. 236, 15 Imm. L.R. (2d) 199 (F.C.A.). Thus, the facts the RPD had to work with were those presented by the parties, and the case turned solely on whether the facts met the requirements of section 108.\n\nIn the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 means. I will return to these assertions later on in these reasons.\n\nThe RPD thus found that the Minister had established that Ms. Galindo Camayo had acted voluntarily when she used her Colombian passports to travel to Colombia, Mexico, Cuba and the United States between 2012 and 2016. The Minister had further established that Ms. Galindo Camayo had intended by her actions to reavail herself of Colombia’s protection as contemplated by paragraph 108(1)(a) of IRPA, and that she had in fact done so.\n\nConsequently, the RPD allowed the Minister’s application for cessation and Ms. Galindo Camayo’s protection claim was deemed to have been rejected.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-10", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 29–31", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Federal Court was satisfied that the RPD had reasonably found that while Ms. Galindo Camayo’s acquisition of her Colombian passports was involuntary, her subsequent use of them to return to Colombia and to travel to other countries was voluntary. The Federal Court further found that the RPD had reasonably relied on the presumption of reavailment—both with respect to Ms. Galindo Camayo’s intention to reavail, and whether she actually had reavailed. The RPD also observed that the presumption of reavailment arises when a protected person acquires, renews, or uses a passport issued by their country of nationality.\n\nHowever, the Federal Court observed that the presumption of reavailment is a rebuttable one. The RPD thus had to consider whether Ms. Galindo Camayo had rebutted the presumption in this case. The Federal Court identified the question for determination as being whether the RPD had reasonably considered Ms. Galindo Camayo’s subjective intent to reavail and her efforts to obtain private security to protect her during her visits to Colombia as evidence that could rebut the presumption of reavailment.\n\nThe Federal Court noted that the outcome in each cessation case will be largely fact-dependent. However, by interpreting Ms. Galindo Camayo’s use of her passport as satisfying all three essential and conjunctive elements of the reavailment test (voluntary, intentional, and actual reavailment), no room was left for Ms. Galindo Camayo to demonstrate that despite her acquisition and use of her Colombian passport, she did not intend to avail herself of the protection of the state. In other words, intention in the cessation context cannot be based solely on intending to complete the underlying act itself; one also has to understand the consequences of one’s actions.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-11", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 32–36", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As can be seen, the Federal Court developed its own view of section 108 and how it should operate, and then applied it to the RPD’s decision. In so doing, it departed from its role as a reviewing court and delved into issues that were for the RPD to consider.\n\nIn the end result, the Federal Court granted Ms. Galindo Camayo’s application for judicial review, certifying the three questions identified at the beginning of these reasons.\n\nAs noted earlier, the first of the questions certified by the Federal Court is no longer in issue. The second question was not appropriate for certification in its original form, as its premise does not fully accord with the facts of this case.\n\nIt will be recalled that the second question certified by the Federal Court was: If yes to Question 1, can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin to travel to a third country has intended to avail themselves of that state’s protection? [my emphasis]\n\nIt is undisputed that Ms. Galindo Camayo did not just use her Colombian passport to travel to third countries, but that she also used it to travel to Colombia on five separate occasions. Consequently, I would first reformulate this question as follows: Can evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection be relied on to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection?", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-12", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 37–39", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is well established that the certification requirement in subsection 74(d) of IRPA is to serve as a control on the types of cases that can be placed before this Court. However, once a question is certified for the consideration of this Court, this Court is entitled to deal with all of the issues that arise in the appeal: Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 at para. 28; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157 at para. 50.\n\nOften, as here, the central issue before the reviewing court is whether the RPD’s decision was reasonable. In an appeal from a decision of the Federal Court in an application for judicial review, this Court’s task is to determine first, whether the Federal Court identified the appropriate standard of review, and second, whether it properly applied that standard: Northern Regional Health Authority v. Horrocks, 2021 SCC 42 at para. 10; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at paras. 45-47. This has often been described as requiring that this Court “step into the shoes” of the Federal Court judge, and focus on the administrative decision. This is the approach to be followed even where the Court is dealing with questions of general importance that have been certified by the Federal Court: Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61 at para. 44 (Kanthasamy SCC).\n\nI understand the parties and the interveners to agree that the Federal Court correctly identified reasonableness as the standard to be applied in reviewing the RPD’s cessation findings. The focus is therefore on the way that the Federal Court applied the reasonableness standard to the RPD’s decision.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-13", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 40–41", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, the fact that we have certified questions before us gives rise to an awkward situation. Certified questions generally raise questions of law, including, as in this case, questions of statutory interpretation. However, the questions, as phrased by the Federal Court, require a yes or no answer. This invites correctness review by this Court. That said, as described above, this Court is required to engage in reasonableness review on questions of statutory interpretation. This creates the possibility that, in some cases, this Court may find the RPD’s interpretation of a statutory provision to be reasonable, yet this Court may say something entirely different in providing its own view of the matter in answering the certified question—something that the Supreme Court expressly tells us not to do: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 83 (Vavilov SCC), citing Delios v. Canada (Attorney General), 2015 FCA 117 at para. 28.\n\nThis Court raised this awkward situation—the misfit between answering the certified question properly and conducting reasonableness review—in Kanthasamy v. Canada (Citizenship and Immigration), 2014 FCA 113 at paragraphs 30 to 37. One solution suggested by this Court in Kanthasamy was to regard the Court’s need to answer certified questions as a statutory indication that correctness should be the standard of review. This solution would seem to gain greater credence now that the Supreme Court has held that statutory standards can have a bearing on the standard of review: Vavilov SCC at paras. 34-35.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-14", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 42–44", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the Supreme Court subsequently confirmed that certified questions are not decisive of the standard of review, and that reasonableness should remain the standard of review applied by this Court: see Kanthasamy SCC, above at paras. 43-44. The Supreme Court appeared to recognize that this effectively renders the answer to the certified question mere surplusage, relegating the role of such questions to fulfilling a gatekeeping function.\n\nThis situation was replicated in Vavilov. The certified question in Vavilov v. Canada (Minister of Citizenship and Immigration), 2017 FCA 132 posed a yes-no question. This Court conducted a reasonableness review of the administrative decision but gave a precise answer, akin to a correctness review answer, to the question. In dismissing the appeal, the Supreme Court in effect ratified how this Court approached the certified question.\n\nThe potential misfit between reasonableness analysis and the definitive correct answer required by a certified question can, however, be avoided if the Federal Court were to formulate certified questions in a manner that asks whether a particular statutory interpretation or approach is reasonable. In this case, the second and third questions, as stated, call for a correctness response. I would therefore amend them to ask whether the particular statutory interpretation or approach suggested by the question is or is not reasonable.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-15", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 45–47", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Consequently, I have reformulated the second and third questions as follows: (2) Is it reasonable for the RPD to rely on evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? (3) Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection?\n\nThe Supreme Court stated in Vavilov that “[r]easonableness review aims to give effect to the legislature’s intent to leave certain decisions with an administrative body while fulfilling the constitutional role of judicial review to ensure that exercises of state power are subject to the rule of law”: Vavilov SCC, above at para. 82.\n\nReasonableness review involves both an assessment of the outcome of the case and of the reasoning process leading to that outcome: Vavilov SCC, above at para. 83. The Supreme Court further affirmed that it is not sufficient for the outcome of a decision to be justifiable. Where reasons are required, the decision must also be justified by the decision maker to those to whom the decision applies: Vavilov SCC, above at para. 86.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-16", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 48–49", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Vavilov teaches that reasons “must not be assessed against a standard of perfection” and that administrative decision makers should not be held to the “standards of academic logicians”: Vavilov SCC, above at paras. 91, 104. Reviewing courts cannot expect administrative decision makers to “respond to every argument or line of possible analysis”: Newfoundland and Labrador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para. 25 (Newfoundland Nurses); Vavilov SCC, above at para. 128. Nor are they required to “make an explicit finding on each constituent element, however subordinate, leading to [their] final conclusion”: Newfoundland Nurses, above at para. 16.\n\nThat said, reasons “are the primary mechanism by which administrative decision makers show that their decisions are reasonable”: Vavilov SCC, above at para. 81. The principles of justification and transparency thus require that administrative decision makers’ reasons “meaningfully account for the central issues and concerns raised by the parties”: Vavilov SCC, above at para. 127. The failure of a decision maker to “meaningfully grapple with key issues or central arguments raised by the parties may call into question whether the decision maker was actually alert and sensitive to the matter before it”: Vavilov SCC, above at para. 128. As a result, “where reasons are provided but they fail to provide a transparent and intelligible justification ... the decision will be unreasonable”: Vavilov SCC, above at para. 136.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-17", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 50", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Where the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes. The principle of responsive justification means that if a decision has particularly harsh consequences for the affected individual, the decision maker must explain why its decision best reflects the legislature’s intention: Vavilov SCC, above at para. 133. The failure to grapple with the consequences of a decision should thus be considered: Vavilov SCC, above at para. 134, citing Chieu v. Canada (Minister of Citizenship and Immigration), 2002 SCC 3.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-18", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 51–52", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In this case, the seriousness of the impact of the RPD’s decision on Ms. Galindo Camayo increases the duty on the RPD to explain its decision. Specifically: a) The loss of refugee or protected person status unquestionably has serious consequences for the affected individual and persons like her, and legislative changes have made those consequences harsher in the last decade. In the past, protected persons who became permanent residents and who were then subject to cessation findings were able to maintain their permanent resident status in Canada. However, with changes brought about by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, sections 18 and 19, this is no longer the case. b) Moreover, a cessation finding cannot be appealed to either the Immigration Appeal Division or the Refugee Appeal Division of the Immigration and Refugee Board: IRPA, subsections 63(3) and 110(2). Individuals whose refugee protection has been ceased are also barred from seeking a Pre-removal Risk Assessment or an application for permanent residence on humanitarian and compassionate grounds for at least one year: IRPA, sections 25(1.2)(c)(i), 40.1, 46(1)(c.1), 63(3), 101(1)(b), 108(3), 110(2), and 112(2)(b.1). They are also inadmissible to Canada for an indeterminate period: IRPA, subsection 40.1(2) and paragraph 46(1)(c.1), and are subject to removal from Canada “as soon as possible”: IRPA, subsection 48(2).\n\nWhere, as here, the administrative decision maker has to deal with issues of statutory interpretation, certain additional considerations must be kept in mind by both the administrative decision maker and the reviewing court.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-19", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 53–55", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, the administrative decision maker must deal with any statutory interpretation issues by examining the text, context and purpose of the relevant provisions. Its analysis need not be the sort of formalistic statutory interpretation exercise that a court would perform: Vavilov SCC, above at paras. 92 and 119; Canada (Minister of Citizenship and Immigration) v. Mason, 2021 FCA 156 at para. 39. Due allowance must be made for the fact that Parliament has given the responsibility to interpret the statutory provisions to an administrative decision maker, not a court, and certainly not to the reviewing court.\n\nSecond, in conducting reasonableness review, a reviewing court must be on guard not to engage in what is called “disguised correctness” review. It should not interpret the statutory provision itself and then use its own interpretation as a yardstick to measure the interpretation reached by the administrative decision maker: Delios, above at para. 28; Mason, above at para. 12. Reviewing courts can adopt specific techniques to avoid doing this: Mason, above at paras. 15-20, citing Hillier v. Canada (Attorney General), 2019 FCA 44 at paras. 13-17.\n\nThird, largely in pre-Vavilov jurisprudence, the Federal Court has offered interpretations of section 108 that shed light on when cessation under section 108 will be warranted. While in some cases, decisions of the Federal Court disagree with each other, it must again be remembered that under Vavilov, the Federal Court is not the body that interprets section 108. Rather, it is restricted to the role of a reviewing court.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-20", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 56–58", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, the leading interpretations of section 108 offered by the Federal Court that are relevant to the case at hand should be considered and assessed by the RPD, with supporting reasoning. As a general matter, judicial interpretations of statutory provisions bind the RPD unless the RPD can distinguish them or explain why a departure from them is warranted.\n\nIn the end result, in cases where the administrative decision maker has to consider the proper meaning of a statutory provision, the reviewing court must be satisfied that the administrative decision maker is “alive [either implicitly or explicitly] to [the] essential elements” of text, context and purpose and has touched on at least “the most salient aspects of the text, context [and] purpose”: Vavilov SCC, above at paras. 120-122; Mason, above at para. 42.\n\nIn my view, the decision of the RPD was not reasonable. As set out above, many questions arise as to the proper interpretation of section 108 of IRPA. The RPD simply stated its own view of what section 108 requires, without any real analysis. In broad terms, it set out the text of section 108, fastened onto the Refugee Handbook, and then asserted its own views of what section 108 requires, without considering the text, context and purpose of section 108. It also failed to analyze and consider the Federal Court’s jurisprudence in order to see whether its decision was legally constrained in any way. It then stated its conclusion on various issues, but did not provide a sufficient pathway of reasoning to explain how it got there.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-21", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 59", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In saying this, I recognize that due allowance must be made for the fact that the RPD is an administrative decision maker, often staffed by lay people, with its own way of dealing with and articulating legal issues. That said, even affording that allowance to the RPD, it fell short of the mark in this case.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-22", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 60", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In the course of its reasons, the RPD made certain assertions that were, in reality, bottom-line views of what section 108 of IRPA means. However, it adopted these views without conducting any statutory interpretation analysis. Examples include the following: (a) The RPD rejected Ms. Galindo Camayo’s claim that she was unaware of the potential consequences of using her Colombian passport. Noting that ignorance of the law was no excuse, the RPD observed that Ms. Galindo Camayo was an educated, sophisticated adult who could have sought information about the steps that she needed to take to secure her status in Canada. At root here was the bare assertion that ignorance of the law is no excuse under section 108, an assertion adopted without any statutory interpretation analysis. (b) Referring to Ms. Galindo Camayo’s evidence that she had engaged private security to protect her while she was in Colombia, the RPD stated that Ms. Galindo Camayo knew enough about the threats or harm that she faced in that country to hire private security to accompany her while she was there. According to the RPD, this indicated that Ms. Galindo Camayo recognized the dangers associated with travel to Colombia. However, the RPD never explains what the legal relevance of this was for the analysis under section 108. An interpretation of section 108 in light of its text, context and purpose would have assisted in this regard. (c) The RPD noted that refugee protection lasts only as long as the reasons for fearing persecution in the country of nationality persist. It accepted that merely obtaining a Colombian passport may not, by itself, be evidence of an individual’s intent to use it. However, Ms.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-23", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 60–61", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Galindo Camayo’s repeated use of her Colombian passport to visit Colombia and other countries was an indication that she intended to travel under the protection of the Colombian government and that she intended to reavail herself of the protection afforded her by her Colombian passport. However, the leap from merely carrying a Colombian passport to a finding that Ms. Galindo Camayo intended to reavail herself of the protection of the Colombian government was unexplained. The RPD’s reasoning implies some undisclosed and unexplained understanding of what “intention” means, and by extension, an undisclosed and unexplained interpretation of section 108 of IRPA. (d) Finally, insofar as actual reavailment was concerned, the RPD found that Ms. Galindo Camayo’s years of travel to third countries on Colombian passports (where she could seek the assistance of the Colombian government if something went wrong), and her repeated trips to Colombia for reasons that were neither necessary nor compelling, demonstrated that she had actually reavailed herself of Colombia’s protection. This involved an unexplained determination of what falls within or outside section 108, and, more particularly, the meaning of the elements of intention, voluntariness and reavailment.\n\nKey to the assessment of the reasonableness of the RPD’s decision is whether it could rely on evidence of a refugee’s lack of subjective knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by her country of nationality has intended to avail herself of that state’s protection. On this point, there is jurisprudence in the Federal Courts that constrains the RPD’s decision-making in this area.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-24", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 62–64", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It will be recalled that the first element of the test for cessation relates to the voluntariness of the individual’s actions. The RPD found that Ms. Galindo Camayo did not act voluntarily when she obtained and renewed her Colombian passports, but that she did act voluntarily when she used those passports to return to Colombia. No issue has been taken with respect to this latter finding. The question for the RPD then was whether Ms. Galindo Camayo intended by her actions to reavail herself of Colombia’s protection.\n\nAs noted earlier, there is a presumption that refugees who acquire and travel on passports issued by their country of nationality to travel to that country or to a third country have intended to avail themselves of the protection of their country of nationality. This is because passports entitle the holder to travel under the protection of the issuing country. This presumption is even stronger where refugees return to their country of nationality, as they are not only placing themselves under diplomatic protection while travelling, they are also entrusting their safety to governmental authorities upon their arrival.\n\nAs the Federal Court observed in Ortiz Garcia v. Canada (Minister of Citizenship and Immigration), 2011 FC 1346, “[r]eavailment typically suggests an absence of risk or a lack of subjective fear of persecution. Absent compelling reasons, people do not abandon safe havens to return to places where their personal security is in jeopardy”: at para. 8.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-25", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 65–67", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Constraining case law from the Federal Court, suggests, however, that the presumption is a rebuttable one. The onus is on the refugee to adduce sufficient evidence to rebut the presumption of reavailment: Canada (Minister of Citizenship and Immigration) v. Nilam, 2015 FC 1154 at para. 26; Li v. Canada (Minister of Citizenship and Immigration), 2015 FC 459 at para. 42.\n\nThe RPD should therefore have carried out an individualized assessment of all of the evidence before it, including the evidence adduced by the refugee as to her subjective intent, in determining whether the presumption of reavailment has been rebutted in this case.\n\nMs. Galindo Camayo testified that she was not aware that using her Colombian passport to travel to Colombia and elsewhere could have consequences for her immigration status in Canada. The RPD rejected this claim, not because Ms. Galindo Camayo was not credible, but because it found that ignorance of the law was not a valid argument. The RPD noted that Ms. Galindo Camayo was an educated and sophisticated individual who could have sought information as to the requirements that she had to uphold in order to maintain her status in Canada. With respect, this misses the point.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-26", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 68–70", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If it were acting reasonably, at this point in its analysis, the RPD should have considered not what Ms. Galindo Camayo should have known, but rather whether she did subjectively intend by her actions to depend on the protection of Colombia. Having failed to find that Ms. Galindo Camayo’s testimony on this point lacked credibility, the RPD is deemed to have accepted her claim that she did not know that using her Colombian passport to return to Colombia and to travel elsewhere could result in her being deemed to have reavailed herself of Colombia’s protection, and that this was not her intent.\n\nThe Minister contends that the cessation provisions of IRPA would be stripped of any meaning if it was sufficient for an individual faced with a cessation application to simply state that they did not know that their actions could put their status in Canada in jeopardy. Not only did the Federal Court explicitly reject this argument, it also overstates the issue.\n\nAn individual’s lack of actual knowledge of the immigration consequences of their actions may not be determinative of the question of intent. It is, however, a key factual consideration that the RPD must either weigh in the mix with all of the other evidence, or properly explain why the statute excludes its consideration.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-27", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 71–74", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In order for it to make a reasonable decision, the RPD was required to take account of the state of Ms. Galindo Camayo’s actual knowledge and intent before concluding that she had intended to reavail herself of Colombia’s protection. I agree with the Federal Court that without this analysis, the RPD’s conclusion on reavailment was not a defensible outcome based on the constraining facts and law, and that it was thus unreasonable: Cerna v. Canada (Minister of Citizenship and Immigration), 2015 FC 1074 at paras. 18-19; Mayell v. Canada (Minister of Citizenship and Immigration), 2018 FC 139 at paras. 17-19.\n\nThe RPD also conflated the question of voluntariness with that of intention to reavail and this led, in part, to an unreasonable decision. Much of the RPD’s analysis of the intention issue is taken up with an examination of the reasons cited by Ms. Galindo Camayo for returning to Colombia. I agree with Ms. Galindo Camayo that the question of whether one intended to reavail oneself of the protection of one’s country of origin has nothing to do with whether the motive for travel was necessary or justified: Federal Court decision at para. 31.\n\nKey to the assessment of the reasonableness of the RPD decision is whether it could rely on evidence that Ms. Galindo Camayo took measures to protect herself against her agent of persecution while she was in Colombia to rebut the presumption of reavailment.\n\nAccording to Ms. Galindo Camayo, her family engaged the services of professional security guards to protect her on each of her trips to Colombia, and documentary evidence from security companies was provided to support her evidence in this regard.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-28", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 75–78", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The RPD appears to have accepted Ms. Galindo Camayo’s evidence on this point. It found however that while she might not have been fully aware of the reasons why her family had fled Colombia, Ms. Galindo Camayo knew enough about the dangers associated with travel to Colombia to engage private security personnel to accompany her while she was there.\n\nGiven that the discussion with respect to Ms. Galindo Camayo’s use of private security takes place in the section of the RPD’s reasons dealing with intention, it appears that the RPD understood this evidence to support its conclusion that by travelling to Colombia, Ms. Galindo Camayo intended to reavail herself of that country’s protection.\n\nI agree with Ms. Galindo Camayo that this was an unreasonable finding: the evidence with respect to her use of private security while she was in Colombia speaks not to her intention to entrust her protection to Colombia, but is, rather, to the opposite effect. It is evidence of Ms. Galindo Camayo’s ongoing subjective fear of the situation in Colombia, and her lack of confidence in the ability of the state to protect her.\n\nOnce again, Ms. Galindo Camayo’s evidence on this point was not necessarily determinative of the issue of intent, and it was open to the RPD to reject it. However, it had to at least consider it properly and, if it found it not to be probative or persuasive, to explain why that was the case. Its failure to do so in this case is a further reason for concluding that the RPD’s decision was unreasonable.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-29", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 79–81", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Before concluding this portion of these reasons, I would note that the RPD appears to have considered Ms. Galindo Camayo’s use of her passport to travel to Colombia as satisfying all three elements of the test for reavailment (voluntary, intentional, and actual reavailment). This is evident from paragraph 22 of its reasons, where it found that Ms. Galindo Camayo’s use of her Colombian passport for travel was voluntary. Similarly, at paragraph 31 of its reasons the RPD found that Ms. Galindo Camayo’s use of her Colombian passport showed her intention to travel under the protection of Colombia, and paragraph 34 of its reasons, where the RPD found that Ms. Galindo Camayo’s use of her Colombian passport to travel to Colombia and elsewhere was evidence of actual reavailment. This approach left little room for Ms. Galindo Camayo to demonstrate that even though she had used her Colombian passport for travel, she did not intend to avail herself of the protection of that country.\n\nThis case represents the first opportunity that our Court has had to deal with a cessation case since the Supreme Court’s decision in Vavilov. As such, the RPD may benefit from our guidance in this area. It would also be unfortunate if we remitted this case for redetermination and the RPD was to repeat some of the errors that occurred in this case, potentially leading to the “endless merry-go-round of judicial reviews and subsequent reconsiderations” that the Supreme Court cautioned against in Vavilov: above, at para. 142.\n\nIt should be noted, however, that in providing this guidance, the Court is not recommending or suggesting any outcome one way or the other in relation to the cessation application involving Ms. Galindo Camayo. The merits of the redetermination are for the RPD to determine.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-30", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "paras 82–83", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted earlier, the RPD’s reasons on the redetermination need not involve a microscopic examination of everything that could possibly be said on the matter. There need only be a reasoned explanation concerning the relevant evidence and key issues, including the key arguments made by the parties: Sexsmith v. Canada (Attorney General), 2021 FCA 111 at para. 36.\n\nMoreover, as the Federal Court observed in this case, the outcome in each cessation proceeding will be largely fact-dependent. I further agree with the submission of the intervener, United Nations High Commissioner for Refugees, that the test for cessation should not be applied in a mechanistic or rote manner. The focus throughout the analysis should be on whether the refugee’s conduct—and the inferences that can be drawn from it—can reliably indicate that the refugee intended to waive the protection of the country of asylum.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-31", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in dealing with cessation cases, the RPD should have regard to the following factors, at a minimum, which may assist in rebutting the presumption of reavailment. No individual factor will necessarily be dispositive, and all of the evidence relating to these factors should be considered and balanced in order to determine whether the actions of the individual are such that they have rebutted the presumption of reavailment. The provisions of subsection 108(1) of IRPA, which operate as a constraint on the RPD in arriving at a reasonable decision: Vavilov SCC, above at paras. 115-124; The provisions of international conventions such as the Refugee Convention and guidelines such as the Refugee Handbook, as international law operates as an important constraint on administrative decision makers such as the RPD. Legislation is presumed to operate in conformity with Canada’s international obligations, and the legislature is “presumed to comply with ... the values and principles of customary and conventional international law”: Vavilov SCC, above at para. 114, citing R. v. Hape, 2007 SCC 26 at para. 53; R. v. Appulonappa, 2015 SCC 59 at para. 40; see also IRPA, paragraph 3(3)(f). The severity of the consequences that a decision to cease refugee protection will have for the affected individual. Where the impact of a decision on an individual's rights and interests is severe, the reasons provided to that individual must reflect the stakes: Vavilov SCC, above at paras. 133-135; The submissions of the parties. The principles of justification and transparency require that an administrative decision maker’s reasons meaningfully engage with the central issues and the concerns raised by the parties: Vavilov SCC, above at paras.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-32", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "127-128; The state of the individual’s knowledge with respect to the cessation provisions. Evidence that a person has returned to her country of origin in the full knowledge that it may put her refugee status in jeopardy may potentially have different significance than evidence that a person is unaware of the potential consequences of her actions; The personal attributes of the individual such as her age, education and level of sophistication; The identity of the agent of persecution. That is, does the individual fear the government of her country of nationality or does she claim to fear a non-state actor? Evidence that a person who claims to fear the government of her country of nationality nevertheless discloses her whereabouts to that same government by applying for a passport or entering the country may be interpreted differently than evidence with respect to individuals seeking passports who fear non-state actors. In this latter situation, applying for a passport or entering the country will not necessarily expose the individual to their agent of persecution. This may be especially so when all the individual has done is apply for a passport: applying for a passport may have little bearing on the risk faced by a victim of domestic violence, for example, or her level of subjective fear; Whether the obtaining of a passport from the country of origin is done voluntarily; Whether the individual actually used the passport for travel purposes.", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-33", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 84", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If so, was there travel to the individual’s country of nationality or to third countries? Travel to the individual’s country of nationality may, in some cases, be found to have a different significance than travel to a third country; What was the purpose of the travel? The RPD may consider travel to the country of nationality for a compelling reason such as the serious illness of a family member to have a different significance than travel to that same country for a more frivolous reason such as a vacation or a visit with friends; What the individual did while in the country in question; Whether the individual took any precautionary measures while she was in her country of nationality. Evidence that an individual took steps to conceal her return, such as remaining sequestered in a home or hotel throughout the visit or engaging private security while in the country of origin, may be viewed differently than evidence that the individual moved about freely and openly while in her country of nationality; Whether the actions of the individual demonstrate that she no longer has a subjective fear of persecution in the country of nationality such that surrogate protection may no longer be required; and Any other factors relevant to the question of whether the particular individual has rebutted the presumption of reavailment in a given case. · The frequency and duration of the travel;", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-520921-34", + "doc_type": "caselaw", + "act_code": "2022 FCA 50", + "act_short": "Galindo Camayo", + "act_name": "Canada (Citizenship and Immigration) v. Galindo Camayo", + "section": "", + "citation": "Canada (Citizenship and Immigration) v. Galindo Camayo, 2022 FCA 50", + "marginal_note": "para 85", + "heading": "Reasonableness review of an immigration decision and the role of certified questions on appeal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For these reasons, I would dismiss the appeal. I would answer the certified questions and, in the case of the second and third questions, the questions as reformulated, as follows: (1)Where a person is recognized as a Convention refugee or a person in need of protection by reason of being listed as a dependent on an inland refugee claim heard before the Refugee Protection Division [RPD], but where the RPD’s decision to confer protection does not confirm that an individual or personalized risk assessment of the dependent was performed, is that person a Convention refugee as contemplated in paragraph 95(1) of the [Immigration and Refugee Protection Act, S.C. 2001, c. 27] and therefore subject to cessation of refugee status pursuant to subsection 108(2) of the IRPA? This question no longer needs to be answered. (2)Is it reasonable for the RPD to rely upon evidence of the refugee’s lack of subjective [let alone any] knowledge that use of a passport confers diplomatic protection to rebut the presumption that a refugee who acquires and travels on a passport issued by their country of origin has intended to avail themselves of that state’s protection? Yes. (3)Is it reasonable for the RPD to rely upon evidence that a refugee took measures to protect themselves against their agent of persecution [or that of their family member who is the principal refugee applicant] to rebut the presumption that a refugee who acquires [or renews] a passport issued by their country of origin and uses it to return to their country of origin has intended to avail themselves of that state’s protection? Yes. \"Anne L. Mactavish\" J.A. “I agree. David Stratas J.A.” “I agree. Marianne Rivoalen J.A.”", + "current_to": "2022-03-29", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/520921/index.do" + }, + { + "id": "fca-501244-1", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 1–4", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal by the Attorney General of Canada from a decision of the Canadian International Trade Tribunal (CITT), reported as Best Buy Canada Ltd., 2019 CanLII 110846 (CA CITT), 2019 CarswellNat 14479 (WL Can) [Best Buy (CITT 2019)]. In that decision, the CITT classified television stands imported by the respondent, Best Buy Ltd., as “parts” of televisions, under tariff item No. 8529.90.90 of the schedule to the Customs Tariff, S.C. 1997, c. 36.\n\nThe CITT decision under appeal was itself a reconsideration of an earlier CITT decision, reported as Best Buy Canada Ltd., 2017 CanLII 149295 (CA CITT), 22 T.T.R. (2d) 57 [Best Buy (CITT 2017)]. Canada appealed the 2017 decision to this Court, which remitted the matter back to the CITT, Canada v. Best Buy Canada Ltd., 2019 FCA 20, 2019 CarswellNat 168 (WL Can) [Best Buy (FCA 2019)], which in turn maintained its original result. Canada once again appeals the CITT’s decision.\n\nThis appeal raises the question of whether this Court may review a CITT decision for issues other than questions of law, contrary to the wording of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.). In my view, subsection 67(3) and section 68 of the Customs Act preclude this Court from reviewing CITT decisions for errors of fact or mixed fact and law that are not so egregious as to rise to the level of errors of law.\n\nCanada alleges the CITT both erred in law, and in applying the law to the facts of the case. I am not convinced that the CITT made an error of law. Further, given my conclusion that this Court may only review CITT decisions on questions of law, I would accordingly dismiss the appeal.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-2", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 5–8", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The goods in issue, which I refer to as “the Best Buy stands”, are metal and wooden models of floor stands for flat-panel televisions. On October 2, 2014, Best Buy requested an advance ruling from the CBSA on the tariff classification of the goods. Best Buy, relying on an earlier CITT decision dealing with similar floor stands, Sanus Systems v. President of the Canada Border Services Agency (8 July 2010), AP-2009-007 (CITT), 2010 CarswellNat 5288 (WL Can), 14 T.T.R. 576 [Sanus Systems], sought to have the goods classified under tariff item No. 8529.90.90.\n\nPrior to issuing its advance ruling on the Best Buy stands, the CBSA, in August 2015, filed a request with the World Customs Organization (WCO) Harmonized System Committee (the “WCO Committee”) for guidance on the tariff classification of audio-visual carts designed to hold televisions and other audio-visual apparatuses. The request informed the WCO Committee of the CITT ruling in Sanus Systems and set out the CBSA’s position that the goods in Sanus Systems were not “parts” of televisions but instead “furniture”.\n\nThe WCO Committee held a vote and decided to direct the Secretariat to prepare Classification Opinions classifying television stands like those at issue in Sanus Systems as “furniture”, not “parts” of televisions. The Classification Opinions were published on June 1, 2016. I refer to the stands covered by these Classification Opinions as “the WCO stands”.\n\nIn July 2016, the CBSA provided Best Buy with its advanced ruling on the goods in issue, classifying them as “furniture” under tariff heading No. 94.03, in accordance with the Classification Opinions.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-3", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 9–11", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Best Buy appealed to the CITT, which allowed the appeal: Best Buy (CITT 2017). Canada appealed the CITT’s decision to this Court, which allowed the appeal and remitted the matter back to the CITT for reconsideration.\n\nIn remitting the matter, this Court relied on section 11 of the Customs Tariff, which reads: Interpretation Interprétation de la liste des dispositions tarifaires 11 In interpreting the headings and subheadings, regard shall be had to the Compendium of Classification Opinions to the Harmonized Commodity Description and Coding System and the Explanatory Notes to the Harmonized Commodity Description and Coding System, published by the Customs Co-operation Council (also known as the World Customs Organization), as amended from time to time. 11 Pour l’interprétation des positions et sous-positions, il est tenu compte du Recueil des Avis de classement du Système harmonisé de désignation et de codification des marchandises et des Notes explicatives du Système harmonisé de désignation et de codification des marchandises et de leurs modifications, publiés par le Conseil de coopération douanière (Organisation mondiale des douanes).\n\nThis Court found that, “[a]lthough the Opinions were relevant because they dealt with goods that were materially the same as those before the Tribunal, the Tribunal failed to consider or have regard to the Opinions as required under the Customs Tariff”: Best Buy (FCA 2019) at para. 5. It thus remitted the matter with instructions to the CITT to have regard to the Opinions in its redetermination.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-4", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 12–13", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The CITT maintained its position that the WCO Classification Opinions, which dealt with wheeled audio/video equipment floor stands, were not relevant in the classification of the Best Buy stands, the latter being television-specific, non-wheeled floor stands. It reiterated that, “[h]aving had regard to the classification opinions, the Tribunal finds that they cover goods of different form and function than the goods at issue”: Best Buy (CITT 2019) at para. 14. This was material because, in the CITT’s view, the goods in issue were more like cases and cabinets than those covered by the classification opinion. The explanatory notes to heading No. 85.29, which captures “Parts suitable for use solely or principally with the apparatus of headings 85.25 to 85.28”, explicitly includes cases and cabinets specialized to receive televisions: Best Buy (CITT 2019) at para. 14.\n\nFinally, the CITT repeated at length its rejection, as set out in its original decision, of Canada’s argument that “parts” of televisions must be articles essential to the functionality of the devices: Best Buy (CITT 2019) at paras. 19–20. It therefore maintained its original decision, namely that the floor stands are “parts” of televisions, rather than “furniture”.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-5", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 14–15", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Canada launched this appeal in September 2019, prior to the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1. It also filed its written submissions in March 2020, prior to this Court’s decisions in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 (WL Can) [Neptune]; and Canada (Attorney General) v. Impex Solutions Inc., 2020 FCA 171, 2020 CarswellNat 4332 (WL Can) [Impex]. In Vavilov, the Supreme Court of Canada changed how courts must treat appeals from administrative tribunals. In Neptune and Impex, this Court addressed how these changes impact the way it must conduct appeals from CITT decisions under section 68 of the Customs Act, which are limited to questions of law. In Neptune, Rennie J.A. posited that “[t]here may nonetheless be judicial review of questions of fact or mixed fact and law from which a legal issue cannot be extricated by virtue of general principles and section 28 of the Federal Courts Act”: at para. 15. However, in both Neptune and Impex, this Court found that the issues before it were questions of law that fell within the ambit of section 68. Rennie J.A.’s comments in Neptune were therefore obiter dicta.\n\nIn its written submissions, Canada argued that it is a question of law whether the CITT had sound reason to, in this case, disregard the WCO Classification Opinion. The standard of review on an appeal from a CITT decision on a question of law, by way of section 68 of the Customs Act, is now correctness: Vavilov at para. 37; Neptune at para. 18; Impex at para. 32.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-6", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 16–19", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, Canada also argued that the CITT’s application of the law to the facts was unreasonable. Canada argued that the CITT considered irrelevant factors in reaching its conclusion about the inapplicability of the WCO Classification Opinion: namely, the practices and procedures of the WCO Committee; and the opinion of an interior designer who testified as a witness. Canada acknowledged that these were, in both instances, issues of mixed fact and law.\n\nIn light of the obiter comments made in Neptune, Canada requested, and was granted, time after the hearing of this case to make additional submissions on the issue of whether matters other than questions of law are reviewable and, if so, via what procedure and under which standard of review?\n\nIn its supplementary submissions, Canada argued that judicial review of CITT decisions on questions of mixed fact and law that do not rise to the level of an error of law is available via an application for judicial review, under paragraph 28(1)(e) of the Federal Courts Act, R.S.C. 1985, c. F-7. In its supplementary submissions, Best Buy agreed with this proposition. Both parties agreed that the standard of review on such questions of fact or mixed fact and law is reasonableness.\n\nHowever, Canada also acknowledged that the Supreme Court’s decision in Vavilov has now cast doubt on this proposition and, performing a role it submitted was somewhat akin to that of an amicus curiae, Canada presented arguments against this Court accepting jurisdiction to review CITT decisions on the basis of errors of fact or mixed fact and law that are not sufficiently egregious to rise to the level of questions of law as contemplated by the operation of subsection 67(3) and section 68 of the Customs Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-7", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 20–21", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, before addressing the issue of whether the CITT’s application of the law to the facts was reasonable, this Court must first decide whether it has jurisdiction to review the CITT’s decision on such questions of mixed fact and law.\n\nFinally, if this Court did conclude that it has jurisdiction to review CITT decisions for errors beyond the scope of the appeal as set out in section 68 of the Customs Act, it would also be required to determine how, as a matter of procedure, this review can be conducted. Generally, past practice in statutory appeals under the Customs Act was to review the CITT decision for reasonableness on the whole: see e.g. Igloo Vikski Inc. v. Canada (Border Services Agency), 2014 FCA 266, 2014 CarswellNat 4603 (WL Can) at para. 2 [Igloo Vikski (FCA)], reversed but not on that point, Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski (SCC)]. Both parties agreed that, after Vavilov, a separate application for judicial review would be necessary. Thus if this Court were to decide it could review the CITT decision for errors beyond those contemplated by section 68 of the Customs Act, it would also have to determine how to deal with the procedural challenge caused by requiring separate proceedings for review of matters of law—under section 68 of the Customs Act—and on any of the other grounds for review under the Federal Courts Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-8", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 22–24", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the CITT did not err in law by declining to classify the Best Buy stands in accordance with the WCO Classification Opinion. Further, the only mechanism for review of a CITT decision made under the Customs Act is the section 68 appeal. Given that appeals under section 68 are limited in scope to questions of law, I am of the view that CITT tariff classification decisions may not be interfered with unless an extricable legal error warrants this Court’s intervention. Given my conclusion on this issue, it is unnecessary to deal with the procedural problems conducting such a review would pose.\n\nCanada contends that the CITT, by considering the process by which the WCO produces a classification opinion, made an error in law when it decided the Opinions do not apply in this case. According to Canada, interpreting and applying WCO Explanatory Notes and Classification Opinions are questions of law, reviewable on a correctness standard.\n\nIn my view, Canada has failed to demonstrate that the appeal raises an extricable legal question to which this Court must provide the correct answer. While I agree that interpretation of how the different provisions of the Customs Tariff interact will generally raise questions of law (see e.g. Impex at para. 40; Neptune at para. 18), the actual application of the provisions to a set of facts is more likely to be a matter of mixed fact and law: Impex at para. 34, citing Canada (Border Services Agency) v. Decolin Inc., 2006 FCA 417, 356 N.R. 284 at para. 41. In other words, whether a specific product fits the description of a tariff item number, in light of its physical characteristics and relevant Explanatory Notes and Classification Opinions, will generally not be a question of law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-9", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 25–26", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is possible that a reviewable error of law may be extricated from a CITT finding of fact or application of law to the facts. For example, findings of fact must generally be supported by evidence, and making a finding of fact without any supporting evidence has often been characterized as an error of law, as opposed to one of fact: see e.g. Schuldt v. The Queen, [1985] 2 S.C.R. 592, 24 D.L.R. (4th) 453 at p. 604, cited with approval in R. v. J.M.H., 2011 SCC 45, [2011] 3 S.C.R. 197 at para. 25. Thus an egregiously incorrect and unsupported finding of fact would be reviewable on a section 68 appeal.\n\nThe CITT’s application of the relevant law may also be reviewable for an error of law if, in applying a legal rule or principle, it effectively misinterpreted or undermined the rule or principle. As the Supreme Court, Iacobucci J.A., put it in Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 D.L.R. (4th) 1 at para. 39: […] After all, if a decision-maker says that the correct test requires him or her to consider A, B, C, and D, but in fact the decision-maker considers only A, B, and C, then the outcome is as if he or she had applied a law that required consideration of only A, B, and C. If the correct test requires him or her to consider D as well, then the decision-maker has in effect applied the wrong law, and so has made an error of law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-10", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 27", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, this Court’s analysis of one of the issues raised in Impex illustrates this principle at work with regard to a CITT tariff classification decision. The case dealt with whether certain disposable shoe coverings were plastic or textile. This Court determined that, in misapplying the tariff schedule, the CITT had effectively erred in law. The relevant portion reads as follows: [41] I am also satisfied that the appellant’s second ground of appeal, which concerns the Tribunal’s alleged failure to consider Note 1 to Chapter 39 upon determining that the goods in issue were articles of plastics, raises a question of law. The appellant contends that this Note directed the Tribunal to determine first whether the goods’ constituent material was a textile defined in Section XI, and more particularly a nonwoven defined in the Explanatory Notes to heading No. 56.03, before even considering whether Chapter 39 covered the goods in issue. In refusing or in neglecting to do so, the argument goes, the Tribunal overlooked a crucial analytical step prescribed by Note 1 to Chapter 39. [42] This second issue requires the Court to determine whether Note 1 to Chapter 39 entails that the goods’ constituent material must be assessed in light of Section XI before turning to Chapter 39. In other words, the issue is whether the logic and structure of the Tariff Schedule require that a constituent material that combines textiles and plastics be assessed in a specific order. If they do, then it is an error of law not to assess that material in that order. This, again, is a question of law reviewable on a standard of correctness.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-11", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 28–29", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus in Impex, the issue was not that the CITT allegedly erred in weighing certain factors against each other, or in unreasonably exercising a discretionary power conferred to it. Instead, this Court concluded that the CITT’s reasoning evidenced a misapprehension of the requirements of the tariff schedule—in other words, of the applicable law. Had this Court not intervened, the proper functioning of the legal rule—the interplay of the different sections of the tariff schedule involved—would have been undermined. The appellant successfully demonstrated that the CITT’s tariff classification decision on the merits raised an extricable question of law, reviewable on a section 68 appeal.\n\nHowever, in this case, no question of law was properly raised. A question of law is defined by its substance, not its form: see Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at paras. 49–50 [Emerson Milling]. In substance, this appeal is not about whether the CITT must have regard to WCO Classification Opinions, as that question is settled: see Best Buy (FCA 2019). Section 11 of the Customs Tariff requires the CITT have regard to WCO Classification Opinions when determining a tariff classification: see also Best Buy (FCA 2019).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-12", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 30–31", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "What having proper regard entails is also settled. In its earlier decision in this matter, this Court, in remitting the matter to the CITT, summarized what this provision requires, at paragraph 4: The phrase “regard shall be had” under section 11 of the Customs Tariff entails that, while not binding, opinions of the WCO must “at least be considered” in determining the classification of goods imported into Canada (Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38 at para. 8, [2016] 2 S.C.R. 80 [Igloo Vikski]). Similarly, this Court has examined the definition of “regard” in the context of section 11 of the Customs Tariff, and found that it means “to consider, heed, take into account, pay attention to, or take notice of” (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131 at para. 13, [2004] F.C.J. No. 615 [Suzuki]). Having “regard” further entails that the Tribunal should respect WCO opinions unless there is “sound reason” to do otherwise (Suzuki at para. 13). The Tribunal may ultimately disagree with the Opinions but it must consider them and provide a sound reason as to why it chose not to follow them.\n\nI would reiterate that, generally, the CITT should respect and follow WCO Classification Opinions. This means that the CITT should seek to, if possible, make tariff classifications that are in harmony with WCO Classification Opinions, rather than in opposition to them.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-13", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 32–33", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "However, where the CITT is of the view that such a harmonious classification is not possible, the CITT is not bound to follow the WCO Classification Opinions: see Best Buy (FCA 2019) at para 4; (Canada (Attorney General) v. Suzuki Canada Inc., 2004 FCA 131, 319 N.R. 299 at paras. 14–17 [Suzuki]. The language of section 11 makes the WCO Explanatory Notes and Classification Opinions factors that must be weighed in the tariff classification process, not binding criteria. It must balance the WCO Classification Opinions and Explanatory Notes against any other factors it considers relevant. For example, it might weigh WCO Classification Opinions against apparently contradictory expert evidence: see e.g. Suzuki at para. 17. The appropriate weight to place on a WCO Classification Opinion will vary depending on the specific facts of the case and, most importantly, the characteristics of the goods in issue as compared to those covered by relevant Classification Opinions.\n\nAs a matter of law, the CITT is entitled to classify a product contrary to a WCO Classification Opinion when it has “sound reason” to do so: Best Buy (FCA 2019) at para. 4; Suzuki at para. 14. Whether it has sound reason in any specific case is unlikely to be a question of law but instead, as is the case here, one that can only be answered with reference to a particular set of facts. In other words, it will generally be a question of mixed fact and law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-14", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 34–35", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Nevertheless, Canada argues that the CITT erred in law by taking into account WCO internal processes as part of its assessment of the WCO opinions. The CITT did indeed cite portions from its decision in Mattel Canada Inc., 2019 CanLII 110865 (CA CITT), 2019 CarswellNat 14487 (WL Can), that describes how the WCO Classification Opinions are created: Best Buy (CITT 2019) at para. 9. However, in my view, it is open to the CITT to consider, in having “regard” to WCO Classification Opinions, how or why those opinions were produced. For example, it might be appropriate for the CITT to take notice of how goods reviewed by the WCO for a Classification Opinion came before the WCO, so that the CITT can assess whether the goods it is classifying are sufficiently similar to those covered by the WCO Classification Opinion. As the CITT noted, the Classification Opinions themselves are short, technical descriptions of products, and without further context—such as the background leading to publication of a specific Classification Opinion—the CITT might not be able to properly have “regard” to an opinion. Indeed, I am reticent to read into section 11 of the Customs Tariff strict limits on what the CITT can consider in reaching a tariff classification. In my view, it is important that this specialized tribunal be able to consider the disputes that come before it in context, which might include taking notice of the WCO’s deliberation processes.\n\nIn sum, Canada has failed to convince me that the CITT, by taking into account the deliberative process the WCO Committee used to create the Classification Opinions, made an error of law in its tariff classification decision.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-15", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 36", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court has, in the past, reviewed CITT decisions for issues of mixed fact and law. For example, in HBC Imports (Zellers Inc.) v. Canada (Border Services Agency), 2013 FCA 167, 446 N.R. 352 [HBC Imports], this Court reviewed, and upheld, the reasonableness of the CITT’s classification of a type of toboggan. In framing the issue before it, this Court noted: [4] The question of whether the Astra Sled should be classified under heading 95.03 requires an interpretation of the expression “other toys” as used in this heading and the application of this interpretation to the Astra Sled. This is a question of mixed fact and law which requires an interpretation of the Tribunal’s own statute. The standard of review is reasonableness, which means that deference is to be given to the Tribunal (Canadian Tire Corp. Ltd. v. President of the Canada Border Services Agency, 2011 FCA 242, at paragraph 4; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, Alberta (Information and Privacy Commissioner) v. Alberta Teachers' Association, 2011 SCC 61 (CanLII), [2011] 3 S.C.R. 654).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-16", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 37–38", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "While other decisions are not so explicit, in many cases this Court has effectively reviewed the CITT’s decision on the merits, assessing the reasonableness of its application of the law to the facts before it, without identifying an extricable legal principle at issue: see e.g. Canada (Attorney General) v. RBP Imports Inc., 2018 FCA 167 at paras. 3–5 [RBP Imports]; Containerwest Manufacturing Ltd. v. Canada (Border Services Agency), 2016 FCA 110 at para. 12 [Containerwest Manufacturing Ltd.]; Igloo Vikski (FCA) at para. 2. In these decisions, this Court did not distinguish between questions of fact, of law and of mixed fact and law, but instead reviewed the CITT’s decision on a tariff classification for its reasonableness on the whole.\n\nHowever, these decisions came before the Supreme Court of Canada’s decision in Vavilov, in which it noted the following, at paragraph 8: […] While the application of the reasonableness standard is grounded, in part, in the necessity of avoiding “undue interference” in the face of the legislature’s intention to leave certain questions with administrative bodies rather than with the courts (see Dunsmuir, at para. 27), that standard has come to be routinely applied even where the legislature has provided for a different institutional structure through a statutory appeal mechanism.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-17", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 39–40", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the Supreme Court of Canada reiterated that respect for legislative intent is the “polar star” of judicial review: at para. 33, citing C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 149. It also held that lower courts should no longer effectively ignore the language of statutory appeal mechanisms and treat appeals launched under them as, essentially, applications for judicial review: Vavilov at para. 45. Instead, courts are now required “to give effect to the legislature’s institutional design choices to delegate authority through statute”: Vavilov at para. 36.\n\nIn my view, the Supreme Court’s dicta in Vavilov provides sufficient basis for this Court to refocus its approach in dealing with statutory appeals under the Customs Act in order to more accurately reflect Parliament’s intent. In its post-Vavilov decisions on appeals under the Customs Act, this Court has not had to decide the issue of whether it lacks jurisdiction to review CITT decisions for errors falling outside the apparent scope of the section 68 statutory appeal, as these cases turned on questions of law: Neptune at para. 18; Impex at para. 40. This case, in which Canada has, in my view, failed to identify an extricable legal issue, but nonetheless also challenges the reasonableness of the CITT’s classification decision on the merits, requires this Court to first decide whether it has jurisdiction to conduct such a review.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-18", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "At first blush, the language of the Customs Act would seem to preclude this Court from reviewing CITT decisions via any procedure other than the statutory appeal provided in that Act. As the statutory appeal is only available on questions of law, this Court would appear to lack jurisdiction to review CITT decisions for any errors other than purely legal ones. The relevant sections of the legislation read as follows: Appeal to the Canadian International Trade Tribunal Appel devant le Tribunal canadien du commerce extérieur 67 (1) A person aggrieved by a decision of the President made under section 60 or 61 may appeal from the decision to the Canadian International Trade Tribunal by filing a notice of appeal in writing with the President and the Canadian International Trade Tribunal within ninety days after the time notice of the decision was given. 67 (1) Toute personne qui s’estime lésée par une décision du président rendue conformément aux articles 60 ou 61 peut en interjeter appel devant le Tribunal canadien du commerce extérieur en déposant par écrit un avis d’appel auprès du président et du Tribunal dans les quatre-vingt-dix jours suivant la notification de l’avis de décision. […] […] Judicial review Recours judiciaire (3) On an appeal under subsection (1), the Canadian International Trade Tribunal may make such order, finding or declaration as the nature of the matter may require, and an order, finding or declaration made under this section is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-19", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 41", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "(3) Le Tribunal canadien du commerce extérieur peut statuer sur l’appel prévu au paragraphe (1), selon la nature de l’espèce, par ordonnance, constatation ou déclaration, celles-ci n’étant susceptibles de recours, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues à l’article 68. […] […] Appeal to Federal Court Recours devant la Cour d’appel fédérale 68 (1) Any of the parties to an appeal under section 67, namely, 68 (1) La décision sur l’appel prévu à l’article 67 est, dans les quatre-vingt-dix jours suivant la date où elle est rendue, susceptible de recours devant la Cour d’appel fédérale sur tout point de droit, de la part de toute partie à l’appel, à savoir : (a) the person who appealed, a) l’appelant; (b) the President, or b) le président; (c) any person who entered an appearance in accordance with subsection 67(2), may, within ninety days after the date a decision is made under section 67, appeal therefrom to the Federal Court of Appeal on any question of law. c) quiconque a remis l’acte de comparution visé au paragraphe 67(2). Disposition of appeal Issue du recours (2) The Federal Court of Appeal may dispose of an appeal by making such order or finding as the nature of the matter may require or by referring the matter back to the Canadian International Trade Tribunal for re-hearing. (2) La Cour d’appel fédérale peut statuer sur le recours, selon la nature de l’espèce, par ordonnance ou constatation, ou renvoyer l’affaire au Tribunal canadien du commerce extérieur pour une nouvelle audience. [Emphasis added] [Nos soulignés]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-20", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 42–43", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Read together, the plain and ordinary meaning of the provisions indicate Parliament’s intent to limit judicial review of CITT decisions to statutory appeals on questions of law: Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27. Subsection 67(3) purports to limit the ability of a court to interfere with a CITT decision except via the statutory appeal mechanism provided for in section 68. Subsection 68(1) only allows for appeal on questions of law.\n\nThis meaning is supported by the legislative context. The Customs Act provides for de novo appeal before the CITT of a CBSA tariff classification decision. Prior to this appeal, the CBSA conducts two levels of internal review: Customs Act, ss. 59–60. By the time a tariff classification matter reaches this Court, any contested factual issues have thus already been subject to multiple levels of review. Similarly, the application of the law to the facts—the tariff classification of the product—has also first been decided by the CBSA, reviewed internally, and then reviewed de novo by the CITT. What the statutory scheme contemplates for this Court to review are contested legal issues, and not factual ones.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-21", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 44", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Further support for this interpretation can be found by comparing the appeal procedure provided for in the Customs Act to similar procedures for review of other types of CITT decisions. The CITT is a quasi-judicial tribunal created by the Canadian International Trade Tribunal Act, R.S.C. 1985, c. 47 (4th Supp.). It decides a wide variety of matters brought before it pursuant to several different statutory authorities. Appeals to the CITT from certain CBSA decisions are available, for example, under subsection 61(1) of the Special Import Measures Act, R.S.C. 1985, c. S-15 [SIMA]. Subsection 61(3) makes these decisions final and conclusive except where subject to appeal, and subsection 62(1) makes appeals to this Court available on questions of law. Notably absent in the SIMA is the language used in the Customs Act to expressly eliminate judicial review of all other CITT decisions made under the SIMA. Indeed, unlike the Customs Act, the SIMA explicitly provides for launching an application for judicial review of certain decisions on grounds other than provided for in the statutory appeal mechanism. For example, section 76 of the SIMA provides: Application for judicial review Contrôle judiciaire 76 Subject to subsection 61(3) and Part I.1 or II, an application for judicial review of an order or finding of the Tribunal under this Act may be made to the Federal Court of Appeal on any of the grounds set out in subsection 18.1(4) of the Federal Courts Act. 76 Sous réserve du paragraphe 61(3) et des parties I.1 et II, les ordonnances ou conclusions du Tribunal prévues à la présente loi sont sujettes au contrôle judiciaire de la Cour d’appel fédérale pour l’un des motifs prévus au paragraphe 18.1(4) de la Loi sur les Cours fédérales.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-22", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 45–46", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The availability of judicial review is also dealt with at section 96.1 of the SIMA, which enumerates at length the types of CITT decisions and issues subject to judicial review, as opposed to being reviewable under that legislation’s statutory appeal mechanism.\n\nAs Canada points out, the explicit reference in the SIMA to the availability of judicial review of CITT decisions made under that Act can be contrasted with Parliament’s explicit statement that CITT decisions made under subsection 67(3) of the Customs Act are “not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by section 68.” In my view, the comparison further supports the plain and ordinary interpretation of the meaning of the Customs Act, which is that judicial review outside the statutory appeal mechanism, and thus for questions of mixed fact and law, is unavailable. If Parliament’s institutional design choices are to be respected, factual issues and issues of mixed fact and law for which no legal question can be extracted must not be subject to review by this Court.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-23", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 47–48", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This conclusion runs contrary to the position taken on this issue by both parties. Canada argues, and Best Buy agrees, that paragraph 28(1)(e) of the Federal Courts Act provides this Court with broad jurisdiction to review CITT decisions for matters not subject to the statutory appeal mechanism. In other words, all matters not captured by the term “question of law”. In support of this proposition, Canada argues that the “rule of law” requires judicial review be available to guard against unreasonable CITT rulings on matters of fact or mixed fact and law. As a subsidiary argument, Canada points to past jurisprudence of this Court recognizing the possibility of judicial review of CITT decisions, and indeed of other tribunals subject to similar limited scope appeal clauses, for matters falling outside the scope of the statutory appeal.\n\nI have already described why I view this Court’s past practice of reviewing these matters on a reasonableness standard, within the procedural vehicle of a section 68 appeal, as of limited import in determining how it should conduct statutory appeals under the Customs Act going forward. Vavilov implemented “a holistic revision of the framework for determining the applicable standard of review”: at para. 143. The Supreme Court explicitly noted that past cases dealing with “the effect of statutory appeal mechanisms […] will necessarily have less precedential force” after Vavilov: at para. 143. In my view, the past cases in which mixed questions were reviewed, under section 68, on a reasonableness standard, effectively ignored subsection 67(3) and Parliament’s institutional design choice. Vavilov makes clear that this past practice should no longer be sustained going forward. Furthermore, in truth the jurisprudence leans both ways.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-24", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 49–50", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted above, in some cases this Court has, either explicitly or implicitly, reviewed the CITT’s application of the law to the facts: see e.g. HBC Imports at para. 4; RBP Imports at paras. 3–5; Containerwest Manufacturing at para. 12; Igloo Vikski (FCA) at para. 2.\n\nHowever, in others, this Court limited its inquiry to whether a reviewable error of law occurred, and declined to review the CITT’s findings of fact or application of law to those facts. In Star Choice Television Network Inc. v. Canada (Commissioner of Customs and Revenue), 2004 FCA 153, 2004 CarswellNat 1004 (WL Can) at para. 9, Strayer J.A. noted that questions of law were “the only matter properly in issue on this appeal”, before concluding the CITT had not made a reviewable error of law. In Deputy Canada (Minister of National Revenue) v. Yves Ponroy Canada, 2000 CanLII 15801 (FCA), 25 Admin L.R. (3d) 101 at para. 36, Sharlow J.A. wrote that “[u]nder subsection 67(3) and subsection 68(1) of the Customs Act, customs tariff classification decisions of the CITT are not subject to judicial review and are subject to appeal to this Court only on questions of law”, before concluding that the CITT had not made a reviewable error of law. And indeed, in one of its handful of decisions on a section 68 appeal, the Supreme Court noted in obiter that, by virtue of subsection 67(3) of the Customs Act, “CITT findings of fact are immune from appellate review”: Canada (Deputy Minister of National Revenue) v. Mattel Canada Inc., 2001 SCC 36, [2001] 2 S.C.R. 100 at para. 26.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-25", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 51–53", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus in my view, past jurisprudence does not provide a persuasive argument as to why the clear meaning of the Customs Act should be disregarded and judicial review of CITT decisions be permitted outside of the section 68 statutory appeal mechanism. Given that that mechanism is restricted in scope to matters of law, I am of the view that this Court may only intervene in a CITT decision if it discloses a reviewable error of law.\n\nDoes this conclusion offend the “rule of law”? Canada argues that it is the constitutional role of the courts to supervise the executive branch of government, and that in order to be fulfilled, this role requires full review of administrative decisions on all matters. In other words, reasonableness review of administrative decisions is constitutionally entrenched, and cannot be limited by legislative act.\n\nIt is true that the Supreme Court, in Crevier v. A.G. (Québec) et al., [1981] 2 S.C.R. 220, 127 D.L.R. (3d) 1 [Crevier], held that the legislature cannot completely oust judicial review via use of a privative clause. It is worth reviewing the facts of that oft-cited case, and briefly unpacking the Supreme Court’s holding.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-26", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 54", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Crevier dealt with the question of whether a provincial legislature can entirely eliminate judicial review of an administrative tribunal empowered to make findings of fact and rule on matters of law. The administrative scheme at issue was set up under Québec’s Professional Code, R.S.Q. 1977, c. C-26, which at the time granted the Professions Tribunal judicial powers to hear appeals of disciplinary decisions made by the different professional orders’ Disciplinary Committees. The Professions Tribunal was composed of judges of the Provincial Court, i.e. not judges appointed by the federal government under section 96 of what was then still the British North America Act, 1867 (UK), 30 & 31 Vict., c. 3, s. 91, since reprinted in R.S.C. 1985, Appendix II., No. 5. At the time, article 194 of the Professional Code purported to completely eliminate recourse to the Superior Courts for review of Professions Tribunal decisions. It read: 194. No extraordinary recourse contemplated in articles 834 to 850 of the Code of Civil Procedure shall be exercised and no injunction granted against the persons mentioned in section 193 acting in their official capacities. 194. Aucun des recours extraordinaires prévus aux articles 834 à 850 du Code de procédure civile ne peut être exercé ni aucune injonction accordée contre les personnes visées à l’article 193 agissant en leur qualité officielle.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-27", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 55", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The articles of the Code of Civil Procedure referred to dealt with applications for judicial review. The most relevant provision was article 846, which read: 846. The Superior Court may, at the demand of one of the parties, evoke before judgment a case pending before a court subject to its superintending and reforming power, or revise a judgment already rendered by such court, in the following cases: 846. La Cour supérieure peut, à la demande d’une partie, évoquer avant jugement une affaire pendante devant un tribunal soumis à son pouvoir de surveillance ou de contrôle, ou reviser le jugement déjà rendu par tel tribunal: 1. when there is want or excess of jurisdiction;. 1. dans le cas de défaut ou d’excès de juridiction; 2. when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect; 2. lorsque le règlement sur lequel la poursuite a été formée ou le jugement rendu est nul ou sans effet; 3. when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done; 3. lorsque la procédure suivie est entachée de quelque irrégularité grave, et qu’il y a lieu de croire que justice n’a pas été, ou ne pourra pas être rendue; 4. when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice 4. lorsqu’il y a eu violation de la loi ou abus de pouvoir équivalant à fraude et de nature à entraîner une injustice flagrante. However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-28", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 55–56", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Toutefois, ce recours n’est ouvert, dans les cas prévus aux alinéas 2, 3 et 4 ci-dessus, que si, dans l’espèce, les jugements du tribunal saisi ne sont pas susceptibles d’appel. [Emphasis added, italics in original] [Nos soulignés]\n\nThe Supreme Court struck down article 194 on the basis that it had the effect of constituting the Professions Tribunal a section 96 court. Chief Justice Laskin, writing for the Court, held the following: It is true that this is the first time that this Court has declared unequivocally that a provincially-constituted statutory tribunal cannot constitutionally be immunized from review of decisions on questions of jurisdiction. In my opinion, this limitation, arising by virtue of s. 96, stands on the same footing as the well-accepted limitation on the power of provincial statutory tribunals to make unreviewable determinations of constitutionality. There may be differences of opinion as to what are questions of jurisdiction but, in my lexicon, they rise above and are different from errors of law, whether involving statutory construction or evidentiary matters or other matters. It is now unquestioned that privative clauses may, when properly framed, effectively oust judicial review on questions of law and, indeed, on other issues not touching jurisdiction. However, given that s. 96 is in the British North America Act and that it would make a mockery of it to treat it in non-functional formal terms as a mere appointing power, I can think of nothing that is more the hallmark of a superior court than the vesting of power in a provincial statutory tribunal to determine the limits of its jurisdiction without appeal or other review. (Crevier at pp. 236–37 [Emphasis added])", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-29", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 57–58", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Crevier has since oft been cited for the proposition that a legislature cannot completely oust judicial review: see e.g. Vavilov at para. 24; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at para. 31. As Stratas J.A., for this Court, recently framed it, “[p]ut positively, Crevier stands for the proposition that there must always be at least some prospect or degree of review”: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2021 FCA 72, 2021 CarswellNat 1003 at para. 102 [Canadian Council for Refugees]. This is indeed all it stands for. It does not imply that the legislature cannot limit or preclude judicial review of administrative decisions for certain types of issues: see e.g. Canadian Council for Refugees at para. 102, citing United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402 at 333; Capital Regional District v. Concerned Citizens of British Columbia et al., [1982] 2 S.C.R. 842, 141 D.L.R. (3d) 385; Vavilov at paras. 45���52. On the contrary, as the emphasized portion of the above cited passage makes clear, Crevier actually explicitly states that the legislature may oust judicial review on issues not touching jurisdiction.\n\nIt is also clear from the above cited passage that, at the time, the Supreme Court considered “questions of jurisdiction” to be a more narrow and important category of question than “questions of law”. In my view, it follows that, according to the reasoning espoused in Crevier, a statutory scheme that allows for appeal of an administrative decision on a question of law meets the constitutional threshold articulated in Crevier.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-30", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 59–60", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court in Crevier was pre-occupied with the lack of any appeal from a decision of the Professions Tribunal to a Superior Court. Comparing to the legislative scheme at issue in this case, it is clear that the Supreme Court’s holding in Crevier would limit Parliament’s ability to completely insulate the CITT from any Superior Court review. In the Customs Act, Parliament has not attempted to do so. Instead, it has provided an appeal mechanism, and simply limited what can be appealed to questions of law. Similar to the Code of Civil Procedure at the time Crevier was decided, the Federal Courts Act makes clear that the traditional judicial review remedies provided for in that Act—injunction, certiorari, prohibition, etc.—are unavailable when a statutory appeal from an administrative decision is provided for: Federal Courts Act, s. 18.5.\n\nIn my view, Crevier supports the position that Parliament may restrict judicial review to questions of law. A statutory provision having this effect, such as section 68 of the Customs Act, meets any threshold established in Crevier. To hold otherwise would be to eliminate any possibility that Parliament could, via statute, restrict the ambit of judicial review of administrative action. What purpose would the specific provisions of the Customs Act, and many other federal statutes that restrict review, serve if recourse to the Courts could always be had on all issues under the general provisions of section 18 and section 28 of the Federal Courts Act?", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-31", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 61–63", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is also why, in my view, the case of Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC], does not bind this panel into allowing a judicial review to proceed in this matter. In PSAC, the Federal Public Sector Labour Relations and Employment Board (the Board) argued that, by virtue of a privative clause found in its constituting statute, its decisions were not amenable to review for errors of law, erroneous findings of fact or any other departures from law: PSAC at paras. 10–12. This Court rejected that argument, holding that the Board’s decisions were reviewable for their reasonableness: PSAC at para. 34.\n\nThere are two factors that differentiate PSAC from this case. Firstly, the legislation at issue in PSAC did not provide for a statutory appeal, and only provided for a limited judicial review on the grounds of jurisdictional or procedural fairness issues, or fraud: PSAC at paras. 10–11. According to the Board, this meant that it could not be reviewed on matters of law.\n\nThere is of course, no such argument being made here. The CITT’s decisions are clearly reviewable for errors of law, and on a correctness basis. Thus the limits on the availability of judicial review being contemplated in this case are significantly more narrow than those argued for by the Board and rejected by this Court, in PSAC. I am not convinced that the reasoning and outcome in PSAC would have been the same had the Board’s statute provided for full review of its decisions on matters of law. I view the very different nature of the review mechanisms at issue in PSAC and in this case as sufficient to distinguish the cases.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-32", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 64–65", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Were the cases not distinguishable, PSAC was nevertheless decided before the Supreme Court of Canada’s decision in Vavilov. As noted above, Vavilov explicitly required lower courts rethink their approach to dealing with statutory appeals, with a view to giving effect to legislative intent. In my view, this major change in the law since PSAC, a change which goes to the heart of the issue in this application, is sufficient to warrant this panel to treat the issue as a novel one, and not consider itself bound by the panel’s holding in PSAC.\n\nFurther, in apparent contrast to the dicta in PSAC, this Court, in recent decisions, found it lacked jurisdiction to review administrative decisions for factual and policy issues where the applicable statutes limited appeals to questions of law and jurisdiction: Emerson Milling at para. 26; Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 (WL Can) at paras. 69, 78 [Bell Canada].", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-33", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 66–67", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is true that, in both those cases, the applicable legislation also provided for appeals to the Governor in Council: Canada Transportation Act, S.C. 1996, c. 10, s. 40; Telecommunications Act, S.C. 1993, c. 38, s. 12(1). The availability of this other mechanism for appeal played a part in this Court’s reasoning declining jurisdiction: Emerson Milling at para. 12; Bell Canada at paras. 48–50. However, I do not think that the Governor in Council review provided for in those schemes fulfills a factual review function. I am of the view that the validity of a statutory provision limiting appeals to this Court on questions of law is not conditional upon the availability of Governor in Council review for matters falling outside the scope of the appeal. As such, I do not see how this Court can review CITT decisions for issues of fact or mixed fact and law on an application for judicial review pursuant to the Federal Courts Act. In my view, subsection 67(3) and section 68 of the Customs Act preclude the possibility of such an application. While paragraph 28(1)(e) of the Federal Courts Act contemplates applications for judicial review of CITT decisions, as noted above, the CITT makes decisions pursuant to a variety of statutory authorities and some, such as the SIMA, do allow for judicial review. The Customs Act expressly does not. I would not disregard this expression of Parliament’s intent.\n\nGiven that Canada acknowledges that its second line of argument on the merits attacks the CITT’s application of the law to the facts, I see no need to deal comprehensively with that argument. Indeed, doing so would be engaging in the exact judicial review exercise I have just concluded this Court is precluded from conducting.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-34", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 68–71", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Given my conclusion that judicial review is unavailable outside of the statutory appeal mechanism provided for in the Customs Act, there is no need for me to address how a party might conduct both an appeal and an application for judicial review of the same decision. However, it is worth noting that if this Court was to accept the position of the parties and find that judicial review was available pursuant to sections 18 and 28 of the Federal Courts Act, under a separate and parallel application, it is clear that such a process would be more burdensome and more complicated than the efficient and timely system of review contemplated by the Customs Act alone. This would fly in the face of the intent of Parliament to simplify and expedite the review of the highly technical decisions of the CITT.\n\nThus, in my view, the only procedure by which this Court may review a CITT decision is an appeal made under section 68 of the Customs Act.\n\nI would dismiss the appeal, with costs. “D. G. Near” J.A. GLEASON J.A. (Concurring Reasons)\n\nI have had the opportunity of reading the reasons of my colleague, Near, J.A. in draft, and, while I concur in result, I arrive at my conclusion by a slightly different path. As is more fully articulated below, it is my view that a slightly broader range of factual determinations made by the CITT may be reviewed by this Court than my colleague would permit, although such review would require the filing of an application for judicial review. While this conclusion does not affect the result in this appeal, it is, in my opinion, nonetheless important to leave the door open to this sort of review, which might be determinative in a future case under the Customs Act, R.S.C. 1985, c. 1 (2nd Supp) or another statute containing a privative clause.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-35", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 72–73", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "That said, I reach the same conclusion as my colleague in terms of the disposition of this appeal as the slightly broader basis for factual review that I contemplate is not available in an appeal. Moreover, even if an application for judicial review had been filed, the sorts of factual errors alleged by the appellant in the instant case would provide no basis for intervention. Thus, like my colleague, I would dismiss this application for judicial review.\n\nI commence my analysis of these issues by noting that I agree that this Court’s decision in Neptune Wellness Solutions v. Canada (Border Services Agency), 2020 FCA 151, 2020 CarswellNat 4287 [Neptune] does not settle the issue of whether factual determinations of the CITT may be reviewed by this Court as the issue was not central to the determination in that case. The comments made on the issue in Neptune are accordingly non-binding obiter dicta. The present case is the first time this issue has been squarely before this Court in the context of the CITT, although a very similar issue was before the Court recently in Canada (Attorney General) v. Public Service Alliance of Canada, 2019 FCA 41, 432 D.L.R. (4th) 170 [PSAC] in the context of federal labour tribunals, where this Court reached an opposite conclusion from that of my colleague.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-36", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 74", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For my colleague, the dicta of the Supreme Court in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 DLR (4th) 1 [Vavilov] constitute an invitation to this Court to breathe new life into the privative clause in the Customs Act, such that it forecloses judicial any review of factual determinations, other than what my colleague qualifies as “egregious” factual determinations, or those for which there is no evidence, which would constitute errors of law and thus could be raised in a statutory appeal under section 68 of the Customs Act. With respect, I disagree with that approach for several reasons.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-37", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 75", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "First, I do not believe that the dicta in Vavilov support this reasoning, especially when one understands Vavilov in the context of how administrative law has developed in Canada and considers that the Supreme Court reconfirmed in Vavilov much of what it had earlier determined in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 [Dunsmuir]. Second, my colleague’s approach is inconsistent with section 18.5 of the Federal Courts Act, R.S.C. 1985, c. F-7. Third, I believe that this issue was settled in PSAC, which is binding on this panel. Fourth, contrary to what my colleague suggests, I do not believe that this Court’s decisions in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 [Emerson Milling] and Bell Canada v. British Columbia Broadband Association, 2020 FCA 140, 2020 CarswellNat 3692 [Bell Canada] mandate my colleague’s approach as the Court was not asked in either of those cases to rule on the availability of an application for judicial review as opposed to deciding on the bounds of a permissible appeal. In addition, there were important differences in the statutory context in Emerson Milling and Bell Canada. Finally, my colleague’s approach sits uncomfortably with how cases of this nature have been considered by this Court and the Supreme Court of Canada since Dunsmuir. I explore each of these points more fully below.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-38", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 76–78", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning first to the dicta in Vavilov, to put that case in context, it is useful to commence with a brief overview of how administrative law has developed over the last several decades, with particular focus on the availability of review for factual errors and the curial treatment of privative clauses. For it is only by understanding this context that one can appreciate the import of the decision in Vavilov.\n\nHistorically, review for factual errors made by administrative decision-makers was not available unless they fit into the category of jurisdictional error. However, legal errors made by administrative decision-makers were reviewable if they appeared on the face of the record. See Donald J.M. Brown and John M. Evans, Judicial Review of Administrative Action in Canada (Toronto: Thomson Reuters Canada, 2009) (loose-leaf updated 2021, release 1), ch. 1 at 1-11 to 1-14.\n\nWith the growth of the administrative state, legislatures inserted privative clauses into many statutes in an attempt to shield the decisions of administrative decision makers from curial review. In the years following adoption of provisions like subsection 67(3) of the Customs Act, Canadian courts, including the Supreme Court of Canada, determined that privative clauses could not shield patently unreasonable administrative decisions from review because this would violate the rule of law, which could not allow such fundamentally flawed administrative decisions to stand. In order to provide a basis for judicial intervention, under the administrative law framework then in force, patently unreasonable decisions were characterized as instances where an administrative decision maker exceeded its jurisdiction.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-39", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 79", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Patently unreasonable decisions included those tainted both by patently unreasonable legal determinations and by patently unreasonable factual determinations. Legal determinations were patently unreasonable if they offered an interpretation that could not be rationally supported by the relevant legislation (see, e.g. C.U.P.E v. N.B. Liquor Corporation, [1979] 2 S.C.R. 227, 97 D.L.R. (3d) 417, at 237). In the context of collective agreement provisions, a patently unreasonable interpretation was characterized as one the provisions could not reasonably bear (see e.g. United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316, 102 D.L.R. (4th) 402, at 341). Factual determinations were characterized as being patently unreasonable where the evidence, viewed reasonably, was incapable of supporting the administrative decision-maker’s findings of fact (see, e.g. Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, [1990] 3 S.C.R. 644, 76 D.L.R. (4th) 389 [Lester] at 687).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-40", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 80", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As concerns factual determinations, the starting point for the discussion of these principles in the Supreme Court’s jurisprudence of the era is the decision in Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, 41 D.L.R. (3d) 6, one of the seminal cases enshrining the principle of deference in Canadian administrative law. There, the Supreme Court considered the ambit of review of determinations made by the Saskatchewan Labour Relations Board, whose decisions were protected by a strongly-worded privative clause. It stated as follows at 388-389: There can be no doubt that a statutory tribunal cannot, with impunity, ignore the requisites of its constituent statute and decide questions any way it sees fit. If it does so, it acts beyond the ambit of its powers, fails to discharge its public duty and departs from legally permissible conduct. Judicial intervention is then not only permissible but requisite in the public interest. But if the Board acts in good faith and its decision can be rationally supported on a construction which the relevant legislation may reasonably be considered to bear, then the Court will not intervene. A tribunal may, on the one hand, have jurisdiction in the narrow sense of authority to enter upon an inquiry but, in the course of that inquiry, do something which takes the exercise of its powers outside the protection of the privative or preclusive clause. Examples of this type of error would include acting in bad faith, basing the decision on extraneous matters, failing to take relevant factors into account, breaching the provisions of natural justice or misinterpreting provisions of the Act so as to embark on an inquiry or answer a question not remitted to it.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-41", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 80–82", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "If, on the other hand, a proper question is submitted to the tribunal, that is to say, one within its jurisdiction, and if it answers that question without any errors of the nature of those to which I have alluded, then it is entitled to answer the question rightly or wrongly and that decision will not be subject to review by the Courts: Anisminic, Ltd. v. Foreign Compensation Commission et al.; Noranda Mines Ltd. v. The Queen et al., supra; Farrell et al. v. Workmen’s Compensation Board, supra; R. v. Quebec Labour Relations Board, Ex p. Komo Construction Inc. [Footnotes omitted and emphasis added.]\n\nThe Supreme Court’s reference to “basing a decision on extraneous matters” and “failing to take relevant factors into account” can be read as encompassing factual matters.\n\nThe possibility of seriously erroneous factual determinations constituting patently unreasonable error was confirmed by the Supreme Court of Canada in its subsequent decision in Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, 14 D.L.R. (4th) 289. There, the Supreme Court was faced with judicial review of a decision of a labour arbitrator, whose decision was protected by a privative clause. In concurring reasons, two judges who wrote separately for the Court, confirmed that a narrow range of factual errors were subject to review for being patently unreasonable.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-42", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 83", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Justice Lamer, who wrote for two members of the Court, stated at 492-495: In principle, where there is a privative clause the superior courts should not be able to review errors of law made by the administrative tribunals. However, it is now settled that some errors of law can cause the arbitrator to lose his jurisdiction. The debate turns on the question of which errors of law result in the loss of jurisdiction. […] this Court has tended since Nipawin, supra, and C.U.P.E., supra, to avoid intervening when the decision of the administrative tribunal was reasonable, whether erroneous or not. In other words, only unreasonable errors of law can affect jurisdiction. […] In looking for an error which might affect jurisdiction, the emphasis placed by this Court on the dichotomy of the reasonable or unreasonable nature of the error casts doubt on the appropriateness of making, on this basis, a distinction between error of law and error of fact. In addition to the difficulty of classification, the distinction collides with that given by the courts to unreasonable errors of fact. An unreasonable error of fact has been categorized as an error of law. The distinction would mean that this error of law is then protected by the privative clause unless it is unreasonable. What more is needed in order that an unreasonable finding of fact, in becoming an error of law, becomes an unreasonable error of law? An administrative tribunal has the necessary jurisdiction to make a mistake, and even a serious one, but not to be unreasonable. The unreasonable finding is no less fatal to jurisdiction because the finding is one of fact rather than law. An unreasonable finding is what justifies intervention by the courts.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-43", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 83–84", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[…] In conclusion, an unreasonable finding, whatever its origin, affects the jurisdiction of the tribunal. I hasten to add that the distinction between an error of law and one of fact is still entirely valid when the tribunal is not protected by a privative clause. Indeed, though all errors of law are then subject to review, only unreasonable errors of fact are, but no others.\n\nJustice Beetz, who wrote for the remaining members of the Court, noted at 480-481: Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause. I cannot say that the arbitrator's award constituted such an abuse. [...] I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-44", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 85", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The notion that certain types of serious factual errors will support intervention even in the face of a privative clause was again endorsed by the Supreme Court of Canada in Lester, where the Court again reviewed a decision of a labour board, whose decisions were protected by a privative clause. While holding that the board’s decision was patently unreasonable because there was no evidence to support that a successorship had occurred under a rational interpretation of the relevant provisions in the legislation, Justice McLachlin (as she then was) described the sort of factual error that might allow intervention under the patently unreasonable standard is the following way at 687: Courts should exercise caution and deference in reviewing the decisions of specialized administrative tribunals, such as the Labour Board in this case. This deference extends both to the determination of the facts and the interpretation of the law. Only where the evidence, viewed reasonably, is incapable of supporting a tribunal's findings of fact, or where the interpretation placed on the legislation is patently unreasonable, can the court interfere. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-45", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, 144 D.L.R. (4th) 385, the Supreme Court again addressed the issue in the context of review of a decision of a labour arbitrator, that was protected by a privative clause. In overturning the arbitrator’s conclusion on the issue of just cause, Justice Cory, writing for the majority of the Court stated at paras. 41- 45 and 47- 48: 41 A number of decisions of this Court have considered the circumstances which will give rise to a finding that a decision of an administrative body is patently unreasonable. The test has been articulated somewhat differently for findings of fact and findings of law. 42 Where a tribunal is interpreting a legislative provision, the test is: . . . was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? See Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., 1979 CanLII 23 (SCC), [1979] 2 S.C.R. 227, at p. 237. 43 A slight variation of this test applies to arbitrators interpreting a collective agreement. In those circumstances, a court will not intervene “so long as the words of that agreement have not been given an interpretation which those words cannot reasonably bear”:Bradco, supra, at p. 341. 44 It has been held that a finding based on “no evidence” is patently unreasonable. However, it is clear that a court should not intervene where the evidence is simply insufficient. As Estey J., dissenting in part, noted in Douglas Aircraft Co. of Canada v. McConnell, 1979 CanLII 51 (SCC), [1980] 1 S.C.R. 245, at p. 277: . . .", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-46", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 86", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "a decision without any evidence whatever in support is reviewable as being arbitrary; but on the other hand, insufficiency of evidence in the sense of appellate review is not jurisdictional, and while it may at one time have amounted to an error reviewable on the face of the record, in present day law and practice such error falls within the operational area of the statutory board, is included in the cryptic statement that the board has the right to be wrong within its jurisdiction, and hence is free from judicial review. 45 When a court is reviewing a tribunal’s findings of fact or the inferences made on the basis of the evidence, it can only intervene “where the evidence, viewed reasonably, is incapable of supporting a tribunal’s findings of fact”: Lester (W. W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry, Local 740, 1990 CanLII 22 (SCC), [1990] 3 S.C.R. 644, at p. 669 per McLachlin J. [...] 47 In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine the record to determine the basis for the challenged findings of fact or law made by the tribunal. As Gonthier J., writing for the majority in National Corn Growers Assn. v. Canada (Import Tribunal), 1990 CanLII 49 (SCC), [1990] 2 S.C.R. 1324, at p. 1370, observed “[i]n some cases, the unreasonableness of a decision may be apparent without detailed examination of the record. In others, it may be no less unreasonable but this can only be understood upon an in‑depth analysis.” In Lester, supra, this Court conducted a review of the record to determine if there was any evidence which could reasonably support a particular factual finding made by a labour relations board.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-47", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 86–87", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "48 Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal’s findings. [emphasis added]\n\nIt was against this backdrop that the provisions in the Federal Courts Act providing for judicial review of federally-regulated decision-makers were enacted. To a certain extent, they provided for review on a somewhat broader basis than that which was historically available at common law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-48", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Currently enshrined in sections 18, 18.1-18.5 and 28 of the Federal Courts Act, these provisions allow for judicial review by the Federal Court of Appeal (for the tribunals named in subsection 28(1) of the Federal Courts Act), or by the Federal Court (for all other federally-regulated administrative decision-makers), except where a statutory right of appeal is provided. Subsection 18.5 of the Federal Courts Act, which is of central importance to the issues before us, provides that access to judicial review is foreclosed only to the extent a right of appeal is present. It states: Exception to sections 18 and 18.1 Dérogation aux art. 18 et 18.1 18.5 Despite sections 18 and 18.1, if an Act of Parliament expressly provides for an appeal to the Federal Court, the Federal Court of Appeal, the Supreme Court of Canada, the Court Martial Appeal Court, the Tax Court of Canada, the Governor in Council or the Treasury Board from a decision or an order of a federal board, commission or other tribunal made by or in the course of proceedings before that board, commission or tribunal, that decision or order is not, to the extent that it may be so appealed, subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with, except in accordance with that Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-49", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 88", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "18.5 Par dérogation aux articles 18 et 18.1, lorsqu’une loi fédérale prévoit expressément qu’il peut être interjeté appel, devant la Cour fédérale, la Cour d’appel fédérale, la Cour suprême du Canada, la Cour d’appel de la cour martiale, la Cour canadienne de l’impôt, le gouverneur en conseil ou le Conseil du Trésor, d’une décision ou d’une ordonnance d’un office fédéral, rendue à tout stade des procédures, cette décision ou cette ordonnance ne peut, dans la mesure où elle est susceptible d’un tel appel, faire l’objet de contrôle, de restriction, de prohibition, d’évocation, d’annulation ni d’aucune autre intervention, sauf en conformité avec cette loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-50", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 89", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Grounds for review are listed in subsection 18.1(4) of the Federal Courts Act, which provides: Grounds of review Motifs (4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal (4) Les mesures prévues au paragraphe (3) sont prises si la Cour fédérale est convaincue que l’office fédéral, selon le cas : (a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction; a) a agi sans compétence, outrepassé celle-ci ou refusé de l’exercer; (b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe; b) n’a pas observé un principe de justice naturelle ou d’équité procédurale ou toute autre procédure qu’il était légalement tenu de respecter; (c) erred in law in making a decision or an order, whether or not the error appears on the face of the record; c) a rendu une décision ou une ordonnance entachée d’une erreur de droit, que celle-ci soit manifeste ou non au vu du dossier; (d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it; d) a rendu une décision ou une ordonnance fondée sur une conclusion de fait erronée, tirée de façon abusive ou arbitraire ou sans tenir compte des éléments dont il dispose; (e) acted, or failed to act, by reason of fraud or perjured evidence; or e) a agi ou omis d’agir en raison d’une fraude ou de faux témoignages; (f) acted in any other way that was contrary to law. f) a agi de toute autre façon contraire à la loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-51", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 90–92", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "With the growth in number and expertise of administrative decision-makers and the increasing complexity of questions remitted to them, the Supreme Court of Canada determined that, at least in certain instances, legal determinations made in the absence of a privative clause should be afforded deference. In Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, 144 DLR (4th) 1 [Southam], building on its earlier decision in Pezim v. British Columbia (Superintendent of Brokers), [1994] 2 S.C.R. 557, 114 D.L.R. (4th) 385 [Pezim], the Supreme Court developed a third standard of review somewhere between correctness and patent unreasonableness, which has been termed reasonableness simpliciter. Such standard required that a decision withstand a somewhat probing examination. The Supreme Court held that the difference between a merely unreasonable and a patently unreasonable decision was in the immediacy or obviousness of the defect. If the defect was apparent on the face of the decision-maker’s reasons, then the decision was patently unreasonable. Conversely, if it took some significant searching or testing to find the defect, then the decision was unreasonable but not patently unreasonable.\n\nIn Southam, the new reasonableness simpliciter standard of review was applied to all aspects of a decision of the Competition Tribunal, including its determinations of mixed fact and law. The relevant legislation provided for a right of appeal to this Court on issues of law and, with leave, on issues of fact.\n\nPerhaps not surprisingly, the determination of which of three standards of review might apply and discernment of their respective content proved increasingly complex and much litigation was devoted to the point.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-52", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 93–95", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Supreme Court of Canada developed the so-call “pragmatic and functional” analysis to assist in this discernment. As developed particularly in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 95 N.R. 161, and Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 1222, 60 D.L.R. (4th) 193, this analysis required a reviewing court to consider several contextual factors to ascertain the applicable standard of review. These principally were: the presence or absence of a privative clause in the legislation creating the decision-maker; the expertise of the administrative decision-maker as compared to that of a court in respect of the point(s) in issue; the purpose of the statute conferring jurisdiction on the decision maker and of the provision(s) in issue; and the nature of the problem solved in the decision under review.\n\nIn Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226, the Supreme Court confirmed that the foregoing analysis applied to each of the determinations made by an administrative decision-maker. In result, different standards of review could, and frequently did, apply to different parts of a decision.\n\nThe increasing complexity of the requisite analysis and its concomitant impact on predictability and cost in judicial review matters gave rise to significant criticism, causing the Supreme Court of Canada to largely jettison and re-work the entire framework for judicial review in Dunsmuir.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-53", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 96–98", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Dunsmuir, the Supreme Court collapsed two of the three previous standards of review of patent unreasonableness and reasonableness simpliciter into a single deferential standard of review called reasonableness. Thus, post-Dunsmuir, there were and are but two standards of review: correctness and reasonableness.\n\nThe Supreme Court held in Dunsmuir that the reasonableness standard was presumptively applicable in most cases, but held that the presumption could be rebutted where the question fell into one of four defined categories or where the contextual factors enumerated in Pushpanathan might require selection of the correctness standard. The four categories for application of correctness set out by the Court in Dunsmuir were: (1) constitutional questions; (2) questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers; (3) questions of central importance to the legal system as a whole; and (4) what the majority termed “true questions of jurisdiction or vires”, which were said to encompass jurisdiction “in the narrow sense of whether or not the tribunal had the authority to make the inquiry” (at para. 59).\n\nThe single framework for review under the deferential reasonableness standard was defined in Dunsmuir as being concerned mostly with the existence of justification, transparency and intelligibility within the decision‑making process but also with assessment of whether a decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and applicable law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-54", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 99", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Notably, under Dunsmuir, the presence of a privative clause in a decision-maker’s constituent statute no longer limits the scope of the Court’s review to patent unreasonableness. Indeed, in Dunsmuir, the decision of the adjudicator under review was protected by a strongly-worded privative clause in s. 101(1) of the New Brunswick Public Service Labour Relations Act, R.S.N.B. 1973, c. P-25, which provided that “Except as provided in this Act, every order, award, direction, decision, declaration or ruling of the Board, an arbitration tribunal or an adjudicator is final and shall not be questioned or reviewed in any court”. The presence of this provision in the adjudicator’s constituent statute played no role in the Supreme Court’s analysis of whether the decision was reasonable. Instead, the Court applied its newly-formulated approach to reasonableness and overturned the adjudicator’s statutory interpretation.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-55", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In reaching its decision, the Supreme Court made two points of particular relevance for the present appeal. First, it noted that the sort of review it had fashioned under the newly-formulated reasonableness standard was required by rule of law principles and that judicial review is constitutionally guaranteed in Canada. At paragraphs, 27-31 Bastarache and Lebel, JJ., writing for the majority, stated as follows: [27] As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures. [28] By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-56", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [29] Administrative powers are exercised by decision makers according to statutory regimes that are themselves confined. A decision maker may not exercise authority not specifically assigned to him or her. By acting in the absence of legal authority, the decision maker transgresses the principle of the rule of law. Thus, when a reviewing court considers the scope of a decision-making power or the jurisdiction conferred by a statute, the standard of review analysis strives to determine what authority was intended to be given to the body in relation to the subject matter. This is done within the context of the courts’ constitutional duty to ensure that public authorities do not overreach their lawful powers: Crevier v. Attorney General of Quebec, 1981 CanLII 30 (SCC), [1981] 2 S.C.R. 220, at p. 234; also Dr. Q v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, 2003 SCC 19, at para. 21. [30] In addition to the role judicial review plays in upholding the rule of law, it also performs an important constitutional function in maintaining legislative supremacy.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-57", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 100", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As noted by Justice Thomas Cromwell, “the rule of law is affirmed by assuring that the courts have the final say on the jurisdictional limits of a tribunal’s authority; second, legislative supremacy is affirmed by adopting the principle that the concept of jurisdiction should be narrowly circumscribed and defined according to the intent of the legislature in a contextual and purposeful way; third, legislative supremacy is affirmed and the court-centric conception of the rule of law is reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law” (“Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice, V-1, at p. V-12). In essence, the rule of law is maintained because the courts have the last word on jurisdiction, and legislative supremacy is assured because determining the applicable standard of review is accomplished by establishing legislative intent. [31] The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). The inherent power of superior courts to review administrative action and ensure that it does not exceed its jurisdiction stems from the judicature provisions in ss. 96 to 101 of the Constitution Act, 1867: Crevier. As noted by Beetz J. in U.E.S., Local 298 v. Bibeault, 1988 CanLII 30 (SCC), [1988] 2 S.C.R. 1048, at p.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-58", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 100–101", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "1090, “[t]he role of the superior courts in maintaining the rule of law is so important that it is given constitutional protection”. In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits. As Laskin C.J. explained in Crevier: Where . . . questions of law have been specifically covered in a privative enactment, this Court, as in Farrah, has not hesitated to recognize this limitation on judicial review as serving the interests of an express legislative policy to protect decisions of adjudicative agencies from external correction. Thus, it has, in my opinion, balanced the competing interests of a provincial Legislature in its enactment of substantively valid legislation and of the courts as ultimate interpreters of the British North America Act and s. 96 thereof. The same considerations do not, however, apply to issues of jurisdiction which are not far removed from issues of constitutionality. It cannot be left to a provincial statutory tribunal, in the face of s. 96, to determine the limits of its own jurisdiction without appeal or review. [pp. 237-38] See also D. J. Mullan, Administrative Law (2001), at p. 50.\n\nSecond, it was clear that the newly-formulated reasonableness standard applies to both legal and factual determinations made by an administrative decision-maker. Indeed, this is inherent in the formulation of the standard itself, which requires that a reasonable decision be defensible in light of both the applicable facts and law.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-59", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 102–103", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Subsequent to the decision in Dunsmuir, courts, including this one and the Supreme Court of Canada, applied the newly-formulated reasonableness standard in judicial review of administrative decisions, including those where the decision was shielded by a privative clause (see, e.g. Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Igloo Vikski; PSAC and the various cases listed in the appendix to that decision).\n\nIn Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 [Khosa], which was decided the year after Dunsmuir, the Supreme Court of Canada confirmed that the Dunsmuir formulation of reasonableness applies under the Federal Courts Act and that questions of law are subject to reasonableness review, despite the wording of paragraph 18.1(4)(c), which contemplates review for errors of law. The majority held that the paragraph merely listed the grounds of review as opposed to the standard of review to be applied to errors of law. As for questions of fact, however, both the majority and the minority held that paragraph 18.1(4)(d) of the Federal Courts Act sets out both the grounds of review and the parameters of what reasonableness requires for review of factual errors. The majority noted that it was “[… ] clear from s. 18.1(4)(d) that Parliament intended administrative fact finding to command a high degree of deference. This is quite consistent with Dunsmuir. It provides legislative precision to the reasonableness standard of review of factual issues in cases falling under the Federal Courts Act” (at para. 46). Justice Rothstein, writing in dissent, concurred on this point.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-60", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 104–106", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "It is noteworthy that the decision of the Immigration Appeal Division that was the subject of review in Khosa was protected by a privative clause, albeit the clause was less broadly worded than the one in section 67 of the Customs Act. Subsection 162(1) of the Immigration and Refugee Protection Act provided that the Immigration Appeal Division had “sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction”.\n\nOne further development of the case law of the Supreme Court of Canada in the wake of Dunsmuir, decided prior to Vavilov, merits mention, namely the decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 [Edmonton East]. There, the Supreme Court confirmed that the Dunsmuir reasonableness analysis applied to statutory appeals in addition to judicial review applications.\n\nWith this background in mind, it is now possible to turn to examine the decision of the Supreme Court of Canada in Vavilov.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-61", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 107", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the Supreme Court set out a revised framework applicable to judicial review in Canada, but, in so doing, confirmed that the “revised framework will continue to be guided by the principles underlying judicial review […] articulated in Dunsmuir [...]: that judicial review functions to maintain the rule of law while giving effect to legislative intent” (at para. 2). The Court also, with three exceptions, maintained the previous framework enshrined in Dunsmuir. More specifically, it confirmed that reasonableness is a single standard, that takes it colour from context, and that reasonableness is concerned both with the existence of justification, transparency and intelligibility within the decision‑making process and with assessment of whether a decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and applicable law. In Vavilov, the Court gave more definition to this formulation of the reasonableness standard, but did not overturn the fundamental approach set out in Dunsmuir.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-62", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 108", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In terms of the three changes to the previous framework wrought by Vavilov, the Supreme Court determined that the contextual factors from Pushpanathan (which, it will be recalled, included the presence of a privative clause) henceforth play no role in selection of the standard of review. Second, it abolished the category of so-called “true questions of jurisdiction”, which were previously held in Dunsmuir to give rise to correctness review. Following Vavilov, such questions are now instead subject to reasonableness review, just like most issues in a judicial review application. Thus, currently, unless a statute specifically sets out the applicable standard of review, reasonableness will be applied in judicial review of all questions except constitutional questions, questions relating to the jurisdictional boundaries between two or more competing administrative decision-makers and questions of central importance to the legal system as a whole.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-63", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 109", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The third change to the previous framework for conduct of judicial review wrought by Vavilov concerns the approach to statutory appeals. The Court held that, absent statutory language to the contrary, statutory appeals henceforth will be subject to appellate as opposed to judicial review principles, thereby overturning its earlier holdings on the point, including in Edmonton East, Pezim and Southam. The standards from Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 are accordingly now applicable to statutory appeals from administrative decisions. Thus, in a statutory appeal, errors of law are now subject to review under the correctness standard whereas, where an appeal is provided for factual issues, errors of fact or of mixed fact and law from which a legal issue cannot be extricated are subject to review for palpable and overriding error.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-64", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 110", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In so deciding, the majority of the Supreme Court held at paragraph 45 of Vavilov, that “The existence of a limited right of appeal, such as a right of appeal on questions of law or a right of appeal with leave of the court, does not preclude a court from considering other aspects of a decision in a judicial review proceeding”. The majority reconfirmed this point at paragraph 52, where it noted: [...] statutory appeal rights are often circumscribed, as their scope might be limited with reference to the types of questions on which a party may appeal (where, for example, appeals are limited to questions of law) or the types of decisions that may be appealed (where, for example, not every decision of an administrative decision maker may be appealed to a court), or to the party or parties that may bring an appeal. However, the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal. But any such application for judicial review is distinct from an appeal, and the presumption of reasonableness review that applies on judicial review cannot then be rebutted by reference to the statutory appeal mechanism. [emphasis added]", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-65", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 111–112", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the Supreme Court determined that, as a matter of principle, the availability of limited appellate review does not foreclose the availability of judicial review. Indeed, such holding mirrors what subsection 18.5 of the Federal Courts Act already provides. This holding is important in the present case. While Supreme Court did not specifically address the issue now before us in Vavilov, it must have been aware that several statutes, like the Customs Act, which contain a limited right of appeal, also contain a privative clause. Thus, its failure to indicate that such a clause would bar access to judicial review is telling.\n\nMoreover, nowhere in Vavilov does the Supreme Court endorse the notion that privative clauses may bar access to judicial review or to review for particular sorts of issues. A complete bar on the availably of judicial review for any type of issue would offend the rule of law as the Supreme Court noted in Dunsmuir, a holding that was specifically endorsed in Vavilov at para. 24. Further, the Court in Dunsmuir and Vavilov did not overturn the previous decades-old case law determining that what were previously characterized as patently unreasonable factual errors, formerly called jurisdictional, remain reviewable, albeit now under the reasonableness standard.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-66", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 113–114", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "To the contrary, the Supreme Court specifically contemplates in Vavilov that factual issues may give rise to unreasonable decisions. In providing further guidance as to the conduct of reasonableness review and the characteristics of a reasonable decision, the Supreme Court in Vavilov elucidated that there are two types of flaws that may render a decision unreasonable: either a failure of rationality in the reasoning process, where reasons are given, or the untenable nature of the decision in light of the legal and factual constraints that bear on it (at para. 101).\n\nFactual issues may give rise to an unreasonable decision under either type of flaw. The majority indicated in respect of a failure of rationality in the reasoning process, quoting from Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247 and Southam at paragraph 102 of its reasons in Vavilov, that a reviewing court “must be satisfied that there is a line of analysis within the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived”. Clearly, this contemplates a decision-maker’s treatment of factual issues.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-67", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 115–116", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Court likewise contemplated that failure to reasonably address factual issues might lead to an untenable result. The majority commented on this point as follows at paragraph 126: [126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.\n\nThus, under the reasonableness standard of review delineated in Vavilov, factual determinations can be the subject of review. In light of this, I do not believe that one can read the dicta in the case as endorsing the notion that privative clauses are to be henceforth read as barring access to judicial review for all factual issues. This is particularly so in light of the limited role afforded to privative clauses by the Supreme Court over the last several decades and the recognition by that Court that the rule of law requires review for factual errors, the most serious of which were formerly called jurisdictional. Such errors now come within the ambit of unreasonable errors.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-68", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 117", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This does not mean that privative clauses have been rendered meaningless. Rather, they are part of the relevant statutory framework – an important contextual factor in determining the parameters of a reasonable decision according to Vavilov and the case law of this Court – and such clauses highlight the deferential nature of reasonableness review for decisions falling within the ambit of the clauses. I do not believe there is any other way to reconcile the collapsing of the patent unreasonableness and reasonableness standards of review into a single standard of reasonableness other than to recognize that review is available under the reasonableness standard for what were formerly characterized as patently unreasonable errors, which include serious factual errors, even in the face of a privative clause.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-69", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This view is shared by Professor Paul Daly, who has written extensively on administrative law matters. In a blog post entitled “Unresolved Issues after Vavilov IV: The Constitutional Foundations of Judicial Review” (17 November 2020), online (blog): Administrative Law Matters , he explained the following: Let me put the difficulty in stark terms. There is nothing, on the face of Vavilov, to prevent a legislature from eliminating reasonableness review. As the majority puts it, “where the legislature has indicated the applicable standard of review, courts are bound to respect that designation, within the limits imposed by the rule of law.” But the “rule of law” here means only that limited class of cases in which correctness review applies to allow the courts to furnish a final, definitive answer to a question in the interests of uniformity. As long as the courts are able to review constitutional questions, questions of central importance to the legal system or questions of overlapping jurisdiction for correctness, nothing seems to stand in the way of legislation to eliminate reasonableness review. This is not merely a theoretical difficulty. There are a couple of ways in which reasonableness review could be eliminated, directly or indirectly. In Alberta, s. 539 of the Municipal Government Act provides: “No bylaw or resolution may be challenged on the ground that it is unreasonable”. Meanwhile, in various provincial statutes, and, most famously, British Columbia, patent unreasonableness has been prescribed as the standard of review of some types of administrative action.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-70", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indirectly, reasonableness review could be ousted by providing for a limited right of appeal. For example, the Federal Court of Appeal has interpreted various provisions relating to statutory appeals on issues of “law or jurisdiction” as excluding the consideration of factual matters. Where an appellate court whose jurisdiction is circumscribed in this way refuses to grant leave or finds that a matter raised by a party is outside the scope of the appeal clause, reasonableness review is unavailable. This would be a simple solution and would provide significant clarity. Here, however, I would invoke Einstein: everything should be made as simple as possible, but no simpler. Appearances, moreover, may be deceptive. On the face of it, Vavilov would permit legislative ouster of reasonableness review. But only on the face of it. Indeed, Hamlet springs to mind: “God hath given you one face, and you make yourself another.” First, in the same paragraph that eliminated jurisdictional error as a category of correctness review one finds the following assertion: “A proper application of the reasonableness standard will enable courts to fulfill their constitutional duty to ensure that administrative bodies have acted within the scope of their lawful authority.” The language of constitutional duty is the language of Crevier and Dunsmuir. It suggests that reasonableness review cannot, in fact, be ousted, for its elimination may prevent courts from doing their constitutional duty.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-71", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Second, although the point is not expressed in constitutional terms, the majority was very clear that it was directing administrative decision-makers to henceforth “adopt a culture of justification and demonstrate that their exercise of delegated public power can be ‘justified to citizens in terms of rationality and fairness.’” If reasonableness review has been eliminated, administrative decision-makers need never demonstrate that their exercise of public power can be justified in terms of rationality and fairness. This would knock the legs from under a central pillar of the architecture of Vavilov. The result, I submit, is that Vavilov establishes a core constitutional minimum of reasonableness review. With respect, the insistence that correctness review – and only correctness review – must be constitutionally entrenched is, and has been, misplaced. Julius Grey put the point with admirable clarity in the mid-1980s: What Crevier does entrench is some degree of review. The courts will not interfere at the same moment on all issues or against all tribunals. However, they now clearly possess a constitutional right to step in when the bounds of tolerance are exceeded by any decision-maker. Clearly, the precise location of the bounds of tolerance is left to the court and that is quite consistent with the general trends in modern administrative law. In short, the “bounds of tolerance” are supplied in Vavilov by reasonableness review. Inasmuch as constitutional questions, questions of central importance to the legal system and questions of overlapping jurisdiction have a “constitutional dimension,” correctness review is also constitutionally entrenched.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-72", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Indeed, this description of the constitutional foundations of Vavilov provides an explanation for an otherwise mysterious passage in the majority reasons. Having established institutional design as a key, grounding concept in the selection of the standard of review, the majority considered limited rights of appeal – such as those restricted to questions of law or jurisdiction – and observed: “the existence of a circumscribed right of appeal in a statutory scheme does not on its own preclude applications for judicial review of decisions, or of aspects of decisions, to which the appeal mechanism does not apply, or by individuals who have no right of appeal.” If respect for institutional design choices is so important, why can unappealable aspects of decisions nonetheless be judicially reviewed? The answer is that reasonableness review is constitutionally entrenched. A limitation of a right of appeal cannot, constitutionally, effect the elimination of reasonableness review of aspects of a decision. How, then, should courts address direct and indirect limitations on reasonableness review post Vavilov? Consider first direct limitations, that is those imposed by eliminating grounds of review or specifying a deferential ground of review. Here, the legislative language can be taken as an indication that the decision-maker should benefit from a wider margin of appreciation. As was the case with privative clauses prior to Vavilov, they would not be enforced to the letter, but their spirit would be respected. Vavilovian reasonableness review is capacious enough to accommodate this solution.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-73", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 118", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In Vavilov, the majority recognized that “the language chosen by the legislature in describing the limits and contours of the decision maker’s authority” may differ from case to case, sometimes allowing “greater flexibility”, sometimes “tightly constraining the decision maker”. Where a ground of review has been eliminated, or patent unreasonableness specified as the standard of review, these statutory provisions can be taken as “language chosen by the legislature” to give “greater flexibility” to the decision-maker. In this way, reasonableness review is preserved and the constitutionally entrenched core minimum of judicial review safeguarded. This is a fairly simple solution, which takes advantage of the thick conception of reasonableness review set out in Vavilov, and provides crystalline clarity about the scope of judicial review. The second question, of indirect limitations, is slightly more complex. Where an appeal is limited to questions of law or jurisdiction, it is arguable that any issue relating to the “constitutional duty” to ensure that administrative decision-makers remain within the boundaries of their authority will fall within the appeal clause. Historically, this was certainly the case, as such clauses respected the constitutional boundaries set out in Crevier. However, the core constitutional minimum I have ascribed to reasonableness review includes matters which go beyond questions of law or jurisdiction.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-74", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 118–119", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "For example, the harsh consequences a decision visits upon an individual as a matter of fact – perhaps leaving them homeless – would probably not fall within a limited appeal clause; this would be problematic, as it would limit the courts’ ability to police the boundaries of administrative decision-makers’ authority and ensure that exercises of state power are publicly justified, to exclude any such issues. Similarly, the responsiveness of a decision to the arguments of the parties and evidence presented is a key feature of Vavilovian reasonableness review but again would not necessarily come within the scope of a limited appeal clause. The contemporaneity requirement might also be in play in some cases, as on appeal a decision-maker may seek to defend its position by relying on documents and other material not referenced in its decision; on a statutory appeal, the court’s analysis will be on the correctness of the outcome, whereas on reasonableness review, the question for the court will be whether the reasons adequately justify the outcome. These considerations help to explain why the majority in Vavilov refused to accept that a limited appeal clause could oust judicial review of matters not falling within the clause. Doing so would be unconstitutional. [Footnotes omitted and emphasis added]\n\nThe foregoing approach, moreover, is consistent with section 18.5 of the Federal Courts Act, the statute that creates the right to judicial review before the Federal Courts. As noted, it provides that access to judicial review is barred only to the extent a right of appeal otherwise exists in respect of an issue.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-75", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 120–122", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "The combined effect of this provision and the treatment of privative clauses in the case law of the Supreme Court of Canada leads to the conclusion that factual errors made by the CITT may be reviewed in the context of a judicial review application under the reasonableness standard. Conversely, errors of law are reviewable under the correctness standard in the context of a statutory appeal under section 68 of the Customs Act. Any overlap in proceedings could be addressed through joinder of an appeal with an application or other appropriate directions as might be required from time to time.\n\nI hasten to underline that the scope of review in respect of factual matters is limited, providing for intervention only in a narrow range of cases beyond those where there is a complete lack of evidence on a point. Thus, there should be relatively few cases where an overlap might occur.\n\nParagraph 18.1(4)(d) of the Federal Courts Act provides that erroneous factual findings may provide the basis for intervention only if the decision was based on them and if they were “made in a perverse or capricious manner or without regard to the material before” the decision maker. The statutory formulation of the test before the Federal Courts for unreasonable factual determinations is akin to what the Supreme Court said about the nature of unreasonable factual findings in Vavilov, where the majority noted at paragraph 126 that unreasonable factual determinations arise where the “… decision maker has fundamentally misapprehended or failed to account for the evidence before it”.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-76", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "As concerns, more specifically, the case law interpreting paragraph 18.1(4)(d) of the Federal Courts Act, in Rohm & Haas Canada Limited v Canada (Anti-Dumping Tribunal) (1978), 22 N.R. 175, 91 D.L.R. (3d) 212, Chief Justice Jacket defined the notion of perversity as “willfully going contrary to the evidence” (at para. 6). As for the criteria of “capriciousness” or of the finding’s being made without regard to the evidence, such would include circumstances where there was no evidence to rationally support a finding, (see, e.g. Stelco Inc. v. British Steel Canada Inc., [2000] 3 FC 282 (C.A.), 20 Admin. L.R. (3d) 159 at para. 22) or where the decision maker failed to reasonably account at all for critical evidence that ran counter to its findings. As noted by Justice Evans in the oft-cited Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), [1999] 1 FC 53, 157 F.T.R. 35 at paragraphs 14-17: [14] It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-77", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made \"without regard to the evidence\": see, for example, Rajapakse v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 649 (F.C.T.D.); Sivasamboo v. Canada (Minister of Employment and Immigration), 1994 CanLII 3532 (FC), [1995] 1 F.C. 741 (F.C.T.D.). [15] The Court may infer that the administrative agency under review made the erroneous finding of fact \"without regard to the evidence\" from the agency's failure to mention in its reasons some evidence before it that was relevant to the finding, and pointed to a different conclusion from that reached by the agency. Just as a court will only defer to an agency's interpretation of its constituent statute if it provides reasons for its conclusion, so a court will be reluctant to defer to an agency's factual determinations in the absence of express findings, and an analysis of the evidence that shows how the agency reached its result. [16] On the other hand, the reasons given by administrative agencies are not to be read hypercritically by a court (Medina v. Canada (Minister of Employment and Immigration) (1990), 12 Imm. L.R. (2d) 33 (F.C.A.)), nor are agencies required to refer to every piece of evidence that they received that is contrary to their finding, and to explain how they dealt with it (see, for example, Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). That would be far too onerous a burden to impose upon administrative decision-makers who may be struggling with a heavy case-load and inadequate resources.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-78", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 123", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "A statement by the agency in its reasons for decision that, in making its findings, it considered all the evidence before it, will often suffice to assure the parties, and a reviewing court, that the agency directed itself to the totality of the evidence when making its findings of fact. [17] However, the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact \"without regard to the evidence\": Bains v. Canada (Minister of Employment and Immigration) (1993), 63 F.T.R. 312 (F.C.T.D.). In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-79", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 124", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Turning now to the relevant case law of this Court, as noted, an issue very similar, if not identical, to the present was before the Court in PSAC. There, the Federal Public Sector Labour and Employment Board (the FPSLREB) intervened in a judicial review application from one of its decisions to argue that the combined effect of the privative clause in its constituent statute and the decreased role of jurisdictional error in the Supreme Court’s administrative law jurisprudence was to render its legal and factual determinations largely unreviewable. The relevant privative clause, identical to the privative clause in the constituent statute of the Canada Industrial Relations Board, is set out in subsection 34(1) of the Federal Public Sector Labour Relations and Employment Board Act, S.C. 2013, c. 40, s. 365, enacted by the Economic Action Plan 2013 Act, No. 2, S.C. 2013, c. 40. It provides: No review by court Impossibilité de révision par un tribunal 34 (1) Every order or decision of the Board is final and is not to be questioned or reviewed in any court, except in accordance with the Federal Courts Act on the grounds referred to in paragraph 18.1(4)(a), (b) or (e) of that Act. 34 (1) Les décisions et ordonnances de la Commission sont définitives et ne sont susceptibles de contestation ou de révision par voie judiciaire que pour les motifs visés aux alinéas 18.1(4)a), b) ou e) de la Loi sur les Cours fédérales et dans le cadre de cette loi.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-80", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "This Court roundly rejected the submissions of the FSPLREB, holding at paragraphs 23-33 as follows: [23] First, they fly in the face of the myriad decisions of this Court and of the Supreme Court of Canada in which decisions of the Board, the CIRB or their predecessors, involving alleged errors of law, fact or mixed fact and law, have been reviewed under the deferential reasonableness standard (or previously under the patent unreasonableness standard) despite the presence of the privative clauses in subsection 34(1) of the FPSLREBA and subsection 22(1) of the Canada Labour Code. The 43 cases listed in the Appendix to these reasons have been decided on this basis in the last two years. For each prior year, several additional cases would be added to the list. Thus, contrary to what the Board asserts, this issue has been definitively settled by the jurisprudence. [24] Second, as this Court held in Canadian National Railway Company v. Emerson Milling Inc., 2017 FCA 79, [2018] 2 F.C.R. 573 at para. 18, the term “jurisdiction”, when used in a provision like paragraph 18.1(4)(a) of the Federal Courts Act, must be understood in its appropriate historical context. This is in accordance with the principles of statutory interpretation, which require a court to have regard to the appropriate context when interpreting legislation: Rizzo & Rizzo Shoes Ltd. (Re), 1998 CanLII 837 (SCC), [1998] 1 S.C.R. 27 at para. 21, 221 N.R. 241; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559 at para. 27.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-81", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[25] In 1990, when Parliament adopted subsection 18.1 of the Federal Courts Act, errors of jurisdiction in Canadian administrative law were understood to include errors of law, in circumstances where the Board was required to offer a correct interpretation, and patently unreasonable legal interpretations, as was noted in P.S.A.C. v. C.F.P.A.; see also C.A.I.M.A.W. v. Paccar of Canada Ltd., 1989 CanLII 49 (SCC), [1989] 2 S.C.R. 983 at pp. 1003-1004, 102 N.R. 1. Such errors were also understood to include findings of fact that would be caught by paragraph 18.1(4)(d) of the Federal Courts Act, as was noted in C.U.P.W. v. Healy. Thus, properly read in context, “jurisdictional errors” for purposes of setting forth a ground (as opposed to a standard) of review within the meaning of subsection 18.1(4) of the Federal Courts Act include situations where the Board makes an unreasonable legal interpretation or an error of fact within the ambit of paragraph 18.1(4)(d) of that Act. [26] Third, contrary to what the Board asserts, the decisions of the Supreme Court of Canada in Dunsmuir and Khosa cannot be understood to narrow the range of Board decisions that may be judicially reviewed. Rather, they hold that a common standard of review framework is to be applied to all federal administrative decision-makers and that, unless one of the exceptions discussed in Dunsmuir obtains, the applicable standard of review is reasonableness. This is evident both from the reasons of the majority in Khosa, at paragraphs 43 to 51 and from the reasons of Rothstein J. at paragraph 111 in the same case, where he discussed the import of the privative clause found in section 22 of the Canada Labour Code.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-82", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "He there wrote as follows: Section 22(1) expressly provides for review on questions of jurisdiction, procedural fairness, fraud or perjured evidence, but excludes review for errors of law or fact through express reference to s. 18.1(4) of the [Federal Courts Act]. Where the privative clause applies, i.e. with respect to s. 18.1(4)(c), (d), or (f), the court is faced with a tension between its constitutional review role and legislative supremacy. In such cases, the Dunsmuir analysis applies. There is no role for the Dunsmuir standard of review analysis where s. 22(1) expressly provides for review on questions of jurisdiction, natural justice and fraud. Correctness review applies in these cases. [27] While the majority in Khosa disagreed that the Dunsmuir analysis applied only to paragraphs 18.1(4)(c) to (f) of the Federal Courts Act, they did not disagree that issues falling within the purview of paragraphs 18.1(4)(c) to (f) are subject to the Dunsmuir analysis. Thus, when read in their appropriate context, subsection 34(1) of the FPSLREBA and subsection 18.1(4) of the Federal Courts Act do not preclude review in the instant cases. [28] Fourth, the cases on which the Board relies enumerated in paragraph 14 of these Reasons do not constitute a binding ruling on this issue. Rather, to the extent these cases may contain passages that might support the Board’s interpretation, the Court’s comments are made only in passing and do not settle the issue. The relevant authorities, which do settle the issue, are P.S.A.C. v. C.F.P.A. and C.U.P.W. v. Healy, which, as already noted, directly contradict the Board’s arguments. Also relevant are the multitude of cases where this Court has reviewed under the reasonableness standard decisions like those challenged in this application.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-83", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Thus, the case law relied upon by the Board is not determinative. [29] Fifth, contrary to what the Board asserts, its interpretation would not lead to greater expedition. Under the Board’s approach, this Court would be required to decide as a preliminary issue what paragraph in subsection 18.1(4) of the Federal Courts Act applies to each argument advanced in an application for judicial review and to determine the Court’s jurisdiction based on the characterization of issue. This sort of formalistic preliminary question-type analysis harkens back to the now abolished division in judicial review matters that limited review under the former section 28 (as opposed to section 18) of the Federal Courts Act to decisions made on a judicial or quasi-judicial basis: see Singh v. Minister of Employment and Immigration, 1985 CanLII 65 (SCC), [1985] 1 S.C.R. 177 at p. 197, 58 N.R. 1 (per Wilson J.); Syndicat des employés de production du Québec et de l’Acadie v. Canada (Human Rights Commission), 1989 CanLII 44 (SCC), [1989] 2 S.C.R. 879 at pp. 895-902, 100 N.R. 241. This requirement led to convoluted, costly and lengthy debates about the character of a decision under review that did little to advance the substance of litigation, and these requirements were consequently abolished in the 1990 amendments to the Federal Courts Act: see An Act to amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other Acts in consequence thereof, S.C. 1990, c. 8, s. 8. To adopt the Board’s approach would reintroduce similar debates and delays in the judicial review process, which are antithetical to the sound labour relations that the FPSLRA is designed to foster. Thus, the Board’s interpretation would in fact end up undermining the purpose of the Act.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-84", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "para 125", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "[30] Finally, contrary to what the Board says, its interpretation runs afoul of the rule of law concerns that provide the constitutional underpinning for judicial review of administrative action by the independent judicial branch: see Dunsmuir at paras. 27-29; Highwood Congregation of Jehovah’s Witnesses (Judicial Committee) v. Wall, 2018 SCC 26 at para. 13, 421 D.L.R. (4th) 381. Given recent pronouncements by the Supreme Court of Canada, the scope of jurisdictional issues that arise in administrative law cases is exceedingly limited, if such issues may still even be said to exist at all. Although the category of true questions of jurisdiction was recognized in Dunsmuir at para. 59 as attracting correctness review, the Supreme Court has repeatedly emphasized its narrow and exceptional nature: see, for example, Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654 at para. 39; Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016 SCC 47, [2016] 2 S.C.R. 293 at para. 26; Quebec (Attorney General) v. Guérin, 2017 SCC 42, [2017] 2 S.C.R. 3 at para. 32. In Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2018 SCC 31 at para. 41, 36 Admin L.R. (6th) 1, the Supreme Court cast doubt on the category’s future: 41. The reality is that true questions of jurisdiction have been on life support since Alberta Teachers. No majority of this Court has recognized a single example of a true question of vires, and the existence of this category has long been doubted.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-85", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 125–126", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "Absent full submissions by the parties on this issue and on the potential impact, if any, on the current standard of review framework, I will only reiterate this Court’s prior statement that it will be for future litigants to establish either that the category remains necessary or that the time has come, in the words of Binnie J., to “euthanize the issue” once and for all (Alberta Teachers, at para. 88). [31] As the Board acknowledges, the recognition that there are few, if any, questions of jurisdiction could result in its decisions being largely unreviewable. This cannot be. [32] In Dunsmuir, the Supreme Court of Canada underscored that judicial review must be available as a constitutional imperative and cannot be ousted by a privative clause. At paragraph 31, Bastarache and LeBel JJ., writing for the majority, stated: 31. The legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. Even a privative clause, which provides a strong indication of legislative intent, cannot be determinative in this respect (Executors of the Woodward Estate v. Minister of Finance, 1972 CanLII 139 (SCC), [1973] S.C.R. 120, at p. 127). [33] Thus, for all the foregoing reasons, contrary to what the Board asserts, its decisions in the instant cases are amenable to review by this Court.\n\nIn my view, the foregoing is determinative and binding on this panel in light of the principles applied by this Court regarding the binding nature of decisions reached by a panel of the Court on subsequent panels (Miller v. Canada (Attorney General), 2002 FCA 370, 220 D.L.R. (4th) 149, at paras. 8-10).", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-86", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 127–128", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "On the other hand, the decisions in Emerson Milling and Bell Canada are not dispositive. Both dealt with the scope of errors that could be reviewed in the context of an appeal for issues of law as opposed to the issue now before us, namely, whether an application of judicial review remains open for issues of fact in the face of a privative clause. Moreover, as my colleague notes, the legislation involved in Emerson Milling and Bell Canada allowed for appeals to the federal cabinet in addition to the statutory appeal to this Court. Such provisions might well have rendered access to judicial review for factual or policy issues unavailable in Emerson Milling and Bell Canada under section 18.5 of the Federal Courts Act.\n\nFinally, the case law of this Court in cases of this nature and, indeed, the decision of the Supreme Court of Canada in Canada (Attorney General) v. Igloo Vikski Inc., 2016 SCC 38, [2016] 2 S.C.R. 80 [Igloo Vikski], considered both legal issues and issues of mixed fact and law in the context of statutory appeals, as my colleague notes at paragraph 21 of his reasons. That this occurred is not surprizing given that the Supreme Court in its administrative case law decided prior to Vavilov had removed all distinctions between statutory appeals and applications for judicial review. However, by reasons of the new edict that appeals are henceforth to be decided under appellate as opposed to judicial review principles, it is now necessary that the small range of reviewable factual issues that do not constitute errors of law as they go slightly beyond findings based on a lack of evidence be pursued by way of an application for judicial review.", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-501244-87", + "doc_type": "caselaw", + "act_code": "2021 FCA 161", + "act_short": "Best Buy", + "act_name": "Canada (Attorney General) v. Best Buy Canada Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Best Buy Canada Ltd., 2021 FCA 161", + "marginal_note": "paras 129–130", + "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.", + "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-501244-88", + "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 131", + "heading": "Customs tariff classification; methodology and appeals from the Canadian International Trade Tribunal", + "part": "Federal Court of Appeal", + "division": "", + "text": "In 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 NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-348-19 STYLE OF CAUSE: ATTORNEY GENERAL OF CANADA v. BEST BUY CANADA LTD. PLACE OF HEARING: Heard by online video conference hosted by the Registry DATE OF HEARING: January 19, 2021 REASONS FOR JUDGMENT BY: NEAR J.A. CONCURRING REASONS BY: GLEASON J.A. CONCURRED IN BY: LEBLANC J.A. DATED: August 5, 2021 APPEARANCES: Andrew Gibbs Elsa Michel For The Appellant Justin Kutyan Thang Trieu For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Appellant KPMG Law LLP Toronto, Ontario For The Respondent", + "current_to": "2021-08-05", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/501244/index.do" + }, + { + "id": "fca-466027-1", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 1–3", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "This is an appeal from a decision of Justice Zinn of the Federal Court (the Applications Judge) dated November 7, 2018, which granted two applications for judicial review made by Honey Fashions Ltd. (Honey Fashions, or the respondent). The Federal Court set aside the decisions made by the Canada Border Services Agency (CBSA), which denied Honey Fashions’ claims for duty remission made under the Textile and Apparel Remission Order, 2014, SOR/2014-278 (TARO 2014).\n\nThe central issue is whether it was unreasonable for the CBSA to apparently reverse an administrative practice and deny name change requests to designate Honey Fashions as importer of record of goods that had been previously imported by others, so that Honey Fashions could obtain remissions under the TARO 2014 program. For the reasons that follow, I have concluded that, in light of the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1 (Vavilov), the Federal Court did not err in quashing these two decisions of the CBSA. The appeal should therefore be dismissed.\n\nAll goods imported to Canada are subject to the provisions of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.), the Customs Tariff, S.C. 1997, c. 36, the Excise Act, 2001, S.C. 2002, c. 22, the Excise Tax Act, R.S.C. 1985, c. E-15, and the Special Import Measures Act, R.S.C. 1985, c. S-15, by which customs duties and taxes are assessed. However, the Governor in Council may, on recommendation of the responsible minister, remit all or a portion of the customs duties by way of a remission order.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-2", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 4–6", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In 1988, the Department of Finance introduced a series of remission orders, intended to help Canadian textile and apparel manufacturers face the challenges of increased international competition. This program allowed listed companies (eligible companies) to import certain goods duty-free as long as they met the conditions specified in the orders. As a result, it was thought that Canadian manufacturers could rationalize their production by specializing in only a few lines while earning remission credits to import complimentary goods, thereby allowing Canadian apparel manufacturers to market a complete fashion line.\n\nIn 1997-98, these orders were superseded by updated versions to comply with the North American Free Trade Agreement (NAFTA). The new version of the program set a capped annual remission entitlement for each listed company, based on the total amount of remission that each manufacturer had received in 1995. The six remission orders listed below formed the basis of the TARO program:\n\nMany manufacturers preferred to focus on manufacturing textiles and apparel in Canada. They had limited, if any, interest in becoming importers. As a result, they began looking for ways to earn the benefits of the program as Canadian manufacturers without being obliged to start or expand an importing business. It appears that for many years, officials of the Department of Finance and of the CBSA allowed eligible Canadian manufacturers to contract with Canadian importers so that Canadian manufacturers could take advantage of their remission entitlements, all with the goal of ensuring that the benefits of the remission program would flow to the Canadian manufacturers.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-3", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 7", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As evidence of that practice, the respondent filed the affidavit of Stephen Yanow, the president of a blouse manufacturer which used the TARO program and whose main business between 1998 and 2012 was matching eligible Canadian manufacturers with Canadian importers who imported qualifying goods. He testified that officials of the Department of Finance approved of that practice, and attached as an exhibit to his affidavit a memorandum (for information) from an official of that Department to that effect. The Applications Judge quoted that memorandum in full at paragraph 10 of his reasons. The memorandum addressed the emerging practice of “remission brokers”, which it described in the following way: The “remission broker” is a recent phenomenon. These are customs brokers or consultants who identify manufacturers who have not used all of their import entitlement. For a fee, they locate importers who are interested in buying the entitlement. Depending on how you look at it, they essentially provide a service to manufacturers to locate importers willing to purchase excess entitlement. In this way, the manufacturers will receive some of the remission benefit (in the form of cash) that they otherwise would not have used. Appeal Book, vol. 2, p. 447", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-4", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 8–9", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The Department official advised that such a possibility was contemplated at the inception of the program, and that such a practice was in compliance with the conditions set out in the remission Orders and the Customs Act: Finance was apprised at the inception of the program about the possibility of selling of entitlement and, as it is currently taking place, the practice is in compliance with the conditions set out in the remission Orders and the Customs Act. (There is no requirement in the Orders that the importer of record be the owner of the goods imported. Manufacturers are simply acting as agents for third party owners and paying a remitted duty – the benefit of which is passed on to the owner.) In fact, it could be argued that it is the marketplace at work. Appeal Book, vol. 2, p. 448\n\nIn the summer of 2010, the CBSA discovered irregularities in its administration of the TARO program regarding the transfer of remission entitlements between several companies. It suspended the processing of all TARO program claims in the fall of 2010, and undertook a comprehensive Quality Assurance Review (QAR) of the program. As a result, Honey Fashions’ claims for duty remission on goods imported in 2006, 2007, 2008 and 2009 were held in abeyance.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-5", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 10–12", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The QAR confirmed three errors committed by the CBSA, one of which being that the CBSA had been permitting certain eligible companies to transfer their remission entitlement, presumably for a fee, to other companies in cases it should not have. Once these irregularities were discovered, the CBSA developed and issued Memorandum D8-11-7 on November 28, 2012 (Policy on the Transfer of Entitlement Pursuant to the Textile and Apparel Remission Orders), which explains how entitlements to remission of customs duties pursuant to the remission orders may be transferred. It explains that the entitlements of an eligible manufacturer cannot be bought, sold or transferred, but can be re-allocated permanently to another company when that other company acquires, purchases or otherwise takes control of the operation of the eligible manufacturer.\n\nThe above-mentioned memorandum additionally recognizes the possibility of entering into “partnering agreements”. Paragraph 5 of the Memorandum states as follows: Subject to conditions, an eligible manufacturer or eligible fabric producer (one who is named in the Schedule to the Order), may enter into a partnering agreement with another company in order to realize its full remission allocation in a given year. In this way, the eligible company is the importer of record for the goods and the other company is the owner or consignee of the goods.\n\nSuch an agreement is subject to some conditions, one of which is that the agreement must be finalized and dated “prior to the release of the imported goods by the CBSA” (Memorandum D8-11-7, at para. 5(b)).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-6", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 13", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Paragraph 6 of the Memorandum also seemingly allows a party that has imported goods and paid the duty on those goods to be subsequently replaced as the importer of record by an eligible manufacturer, by way of a name change request. Such a name change request must be made at the same time and on the same form as the claim for remission by the eligible manufacturer. This paragraph reads in part as follows: If goods that are subject to a partnering agreement and for which remission is or will be claimed have already been imported and accounted for in the name of the other company (i.e., the owner or purchaser), it will be necessary to amend the importer name before remission will be approved. In such cases, a name change request must be submitted in accordance with instructions set out in CBSA Memorandum D17-2-3, Importer Name/Account Number or Business Number Changes.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-7", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 14–15", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Memorandum D17-2-3, referenced in Memorandum D8-11-7, outlines the procedures to be followed when an importer name change is necessary due to error on the part of the importer or the CBSA. Pursuant to section 7.1 of the Customs Act, all information provided to the CBSA must be “true, accurate and complete”. Paragraphs 14 to 22 of this Memorandum set out the procedure to be followed where the incorrect party has been named as the importer of record but where the true importer was entitled to conditions, exemptions and/or privilege (such as remission of duties under TARO). Paragraph 22 provides that the name change request must be: (a) supported by documents (e.g., purchase orders, commercial invoices, cancelled cheques, fax transmissions, written correspondence), which clearly indicate the claimant’s interest and the part played by the claimant in the import transaction; (b) supported by a letter from the importer of record, disclaiming involvement in the importation; and (c) supported by a clear and complete explanation of why the party named as the importer on the original accounting document was so named, and why the importer/broker/agent now believes that a second party is the true importer.\n\nThe CBSA recognized that the errors identified in the QAR were entirely its fault. Since Schedule 1 manufacturers who received remissions had relied in good faith on representations made and authorizations issued by CBSA officials, and had made business decisions accordingly, the CBSA concluded that it would be unfair to revoke the authorizations and seek to collect the duty that had been remitted.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-8", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 16–18", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "To correct the situation, TARO 2014 was enacted. It governed the administration of the TARO program from 2008 until 2012, the year the TARO program ended. TARO 2014 was designed to ensure that eligible Schedule 1 manufacturers received their full entitlement to remission up to 2012. Remissions to the companies listed in Schedule 1 to the Order were subject to the following conditions: a) the goods were imported into Canada between January 1, 2008 and December 31, 2012; b) the erroneous authorization for the remission must have been issued by the CBSA on or before December 31, 2012; and c) an application for the remission is received by the CBSA on or before the deadline set out in Schedule 2 of the Order. The conditions from the six original and separate TARO programs were also incorporated into TARO 2014.\n\nHoney Fashions is one of the companies listed on Schedule 1 of TARO 2014. Three of its drawback claims are relevant for the purpose of this appeal, each of which was accompanied by a name change request:\n\nThe last two claims were essentially resubmissions of past drawback claims that had been refused by the CBSA in February and August 2016 because they did not provide the proper documentation required in accordance with Memorandum D17-2-3. The resubmitted claims were accompanied by additional letters and arguments, but Honey Fashions did not provide the substantiating documents required by the Memorandum for their name change requests. On September 6, 2017 a senior official of the CBSA denied both of the resubmitted claims, on the basis that the documents provided “do not clearly establish that the name change is the result of an error of the importer or the [CBSA] or that the terms of Memorandum D17-2-3 have been met” (Appeal Book, vol. 1, pp. 175 and 292).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-9", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 19–21", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Applying the reasonableness standard, the Federal Court found in favour of Honey Fashions. Reasoning that the decision to deny Honey Fashions the remissions under the TARO program stands or falls with the decision not to accept the name change requests, the Court focused on that decision and determined that it was made in breach of the CBSA’s duty of fairness in addition to being arbitrary and unreasonable.\n\nThe Federal Court found that Honey Fashions had a legitimate expectation, based on a clear, unambiguous and unqualified regular practice, that the CBSA would accept their name change requests and approve the drawback claims. In denying the claims without detailed reasons for what the Federal Court characterized as a “change in the procedure for changing the importer of record”, the CBSA treated Honey Fashions unfairly (Reasons, at paras. 43-48).\n\nThe Federal Court also found that the CBSA’s decision was unreasonable because it lacked justification, transparency and intelligibility. In the Federal Court’s view, there was no material difference between the claim filed in 2010 and the claims filed in 2015 (and refiled in 2016). Although acknowledging that CBSA officials are not subject to the doctrine of stare decisis, the Federal Court found the decision to grant the former but deny the latter without additional explanation to be arbitrary, and thus unreasonable.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-10", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 22–25", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In my view, the only issue to be decided by this Court is whether the Applications Judge erred in its application of the reasonableness standard of review to the CBSA’s decisions. The parties have also challenged the Applications Judge’s ruling on procedural fairness but for reasons developed below, I do not think that issue need be addressed here, if only because it appears to be a mere restatement of the conclusion on substantive reasonableness.\n\nThe Federal Court’s finding that the CBSA has jurisdiction to determine the identity of the importer of goods into Canada is not under appeal.\n\nThe original appellants in this appeal were the Attorney General of Canada and the President of the Canada Border Services Agency. They were the unsuccessful respondents in the application for judicial review in the Federal Court.\n\nAccording to Rule 303 of the Federal Courts Rules, S.O.R./98-106, however, the Attorney General of Canada should have been the only respondent in the Federal Court. As a result, the Attorney General of Canada is the only proper appellant in this Court. The style of cause should therefore be amended to reflect that change, and the President of the Canada Border Services Agency should be removed as an appellant.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-11", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 26–27", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "After the hearing of this appeal, the Supreme Court of Canada released its decision in Vavilov. This Court thus requested further written submissions from the parties with respect to the applicable standard of review. There is no dispute between the parties that when this Court sits on appeal of a decision by the Federal Court reviewing an administrative decision, our task is to determine whether the application judge correctly identified the appropriate standard of review and applied it correctly: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at paras. 45-47 [Agraira]. In the case at bar, both parties agree that reasonableness remains the applicable standard of review.\n\nUnderstandably, the appellant and the respondent focus on different aspects of the Vavilov decision. The appellant acknowledges that where a decision maker departs from longstanding practices or established internal authority, the departure must be explained in its reasons. However, the appellant argues that the CBSA did not break with its longstanding practices because it has consistently considered importer name change requests in the context of its evaluation of remission claims under TARO. In the appellant’s view, Honey Fashions’ longstanding practice of submitting post-importation name change requests without substantiating evidence must not be conflated with the CBSA’s past decisions to accept its request without substantiating evidence.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-12", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 28–29", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent retorts that the majority in Vavilov stressed the importance of justification for administrative decision makers, and that a more robust form of review is called for to ensure consistency and to guard against the threat of arbitrariness. Accordingly, in the respondent’s view, the Federal Court was right to focus on the CBSA’s reasons and on the need for the CBSA to explain its abrupt policy change. Relying more explicitly on paragraph 131 of Vavilov, the respondent stresses that one of the factors constraining the reasonableness of a decision is the need to provide explanations when a decision departs from longstanding practices or established internal decisions. Needless to say, Honey Fashions strongly disagrees with the appellant’s submissions that past practices and internal decisions are not the same.\n\nIn my view, the respondent rightly points to the importance given by the Supreme Court in Vavilov to the justification of a decision. To the extent that reasons have been provided, the reviewing court must pay close attention to those reasons to ensure that the decision is the result of an “internally coherent and rational chain of analysis” (Vavilov, at para. 85). In other words, the reasons may be as important as the result. As the majority stated at paragraph 86: In short, it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision maker to those to whom the decision applies. While some outcomes may be so at odds with the legal and factual context that they could never be supported by intelligible and rational reasoning, an otherwise reasonable outcome also cannot stand if it was reached on an improper basis.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-13", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 30–32", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In addition to the reasons provided, Vavilov directs the reviewing court to examine the reasonableness of an administrative decision in terms of the legal and factual constraints on the decision maker’s discretion. Among the constraints that bear on the reasonableness of a decision are the governing statutory scheme, the evidence before the decision maker, past practices and past decisions, and the impact of the decision on the affected individual. I will turn to each of these factors as they are the most relevant to the resolution of this dispute.\n\nBecause they exercise delegated authority, administrative decision makers must obviously act within the powers they receive by statute; accordingly, the governing statutory scheme is of crucial importance in determining the reasonableness of their decisions. In that respect, the range of discretion given to a decision maker will be of particular interest in assessing whether they have acted within the confines of the law.\n\nIn the case at bar, the appellant claims that the CBSA’s decisions comply with the rationale and purview of the statutory scheme under which the decisions were made, namely section 7.1 of the Customs Act and the TAROs. For situations like this, the D8-11-7 Memorandum directs parties to file name change requests “in accordance with instructions set out in CBSA Memorandum D17-2-3”. In each of the remission claims at issue, Honey Fashions provided accounting documentation that identified another company as importer of the qualifying goods. The drawback claims included letters noting the CBSA’s memorandum on importer name changes, and indicating that “incorrect party has been named as importer of record” (Tevel affidavit, Appeal Book, vol. 1, Tab 7, Ex. E, pp. 332, 341-342, 351, 354 and 362).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-14", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 33–35", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The D17-2-3 Memorandum is very clear on what documentation is required in support of a name change application (see paragraph 14, above). A pre-importation partnering agreement would have been acceptable substantiating evidence, as well as any documents clearly establishing that the claimant was the true importer. Honey Fashions did not provide the necessary documentation; instead, it tried to rely on a declaration that it was assuming the obligations of importer of record with the consent of the original importer (Appeal Book, vol. 1, pp. 300, 387).\n\nI agree with the appellant that for the CBSA to comply with the Customs Act, it had to ensure that the person who causes the goods to be exported to Canada was truly the importer before it could approve retroactively an importer name change request. This is consistent with section 7.1 of the Customs Act, which requires that all information provided to the CBSA shall be true, accurate and complete, and with the plain and ordinary meaning of “importer”. There is certainly an argument to be made that if the CBSA is precluded from excluding post-importation involvement and is forced to accept name change requests on the basis of a partnering agreement entered into after the goods are effectively imported to Canada, it would be constrained from performing its regulatory functions of verification and would be acting contrary to section 7.1 of the Customs Act.\n\nIf the reasonableness of the decisions under review were to be assessed on the sole basis of their conformity with the overall legislative scheme pursuant to which they were made, they might pass muster. The decisions of the CBSA are arguably consistent with the Customs Act and the applicable TAROs. To that extent, they may be considered reasonable in the abstract.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-15", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 36", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The respondent claims, however, that the impugned decisions of the CBSA are at odds with past practices and past decisions. Relying on testimonial and documentary evidence, Honey Fashions argued that there was a consistent and longstanding departmental practice of accepting post-importation name changes on the basis of post-partnering agreements. The Applications Judge accepted that evidence in the following terms: [47] The uncontradicted evidence before the Court is that Honey Fashions has participated in the TARO Program since its inception, that it was not a major importer of apparel but took full advantage of its entitlements under the program by becoming the importer of record of goods previously imported by others. It did so by filing a name change with the CBSA to record it as the importer of record, with the agreement of the initial importer. This procedure was accepted and arguably endorsed by the CBSA. Until the decisions under review were made “CBSA officials consistently accepted the name change notification to change the importer of record, and processed Honey Fashions’ remission applications on the basis that Honey Fashion was the importer of record.” The change in the procedure for changing the importer of record had dramatic consequences to Honey Fashions.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-16", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 37", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "In its initial submissions, the appellant stressed that the doctrine of stare decisis does not apply to administrative decision makers, and that they are not required to explain the differences between two separate decisions. Following the release of Vavilov, counsel recognized that departures from longstanding practices or established internal authority must now be explained, but argued that there was no such departure in the case at bar. In a somewhat specious argument, counsel contends that the CBSA’s practice has not changed in the context of a claim for remission of customs duties because its decision to accept the name change in the past is not a practice but a substantive outcome. To quote from their written submissions (at paragraph 6 of their January 31, 2020 letter), “[e]ssentially, Honey Fashions conflates their alleged long-standing practice of submitting post-importation name change requests without substantiating evidence, with the CBSA’s past decisions to accept their request without substantiating evidence”. In my view, this is a distinction without a difference and, as such, an argument without merit.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-17", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 38", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "First of all, I note that the Supreme Court uses “past practices” and “past decisions” interchangeably in Vavilov, and is more concerned with the need for coherence and justification than with semantics. What matters is that like cases be treated alike and that outcomes shall not be dependant on the identity of the individual decision maker (at para. 129). In that spirit, it matters not whether a course of action is labelled as “past practices” or “past decisions”. Of course, I agree with the appellant that the CBSA must always be able to exercise its discretion to determine how and when verification for compliance is conducted, and to consider importer name change requests in the context of its evaluation of remission of customs duty claims under TARO. However, if the evidence establishes that the CBSA has consistently allowed importer name change requests for remission of customs duties without requiring substantiating evidence showing pre-importation partnering agreements, these past decisions amount to past practices (both for Honey Fashions and the CBSA).", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-18", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 39", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As previously mentioned at paragraph 18 of these reasons, both the 2011 and 2012 claims were rejected without any explanation or justification as to why those claims ought to be treated differently from earlier ones. This is particularly egregious considering that the 2009 claim had been accepted on the basis of the same information given by Honey Fashions (although admittedly on the basis of the pre-QAR policies and before CBSA issued the D8-11-7 Memorandum). Once again, this is not to say that the CBSA was bound to follow the same course of action it had followed in the past. CBSA was indeed entitled to modify its policy in order to comply with the Customs Act, provided that in so doing, its interpretation is reasonable. However, in the circumstances of this case, the CBSA should have provided an explanation to Honey Fashions with respect to its departure from past practice. As the Supreme Court stated in Vavilov (at para. 131): We repeat that this does not mean administrative decision makers are bound by internal precedent in the same manner as courts. Rather, it means that a decision that departs from longstanding practices or established internal decisions will be reasonable if that departure is justified, thereby reducing the risk of arbitrariness, which would undermine public confidence in administrative decision makers and in the justice system as a whole.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-19", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 40–41", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "I am therefore of the view that the decisions of the CBSA were not reasonable in light of this important contextual consideration in the present case. It was not sufficient to claim, ex post facto, that the decisions made by the CBSA official complied with the rationale and purview of the statutory scheme under which they were made. In light of the impact of the decisions on the respondent, CBSA had to provide it with an explanation as to why the past practice was not followed and, presumably, why a post-importation partnering agreement would be contrary to section 7.1 of the Customs Act and would undermine the customs scheme when such agreements had been accepted without question in the past. Accordingly, on the basis of the recent teachings of the Supreme Court in Vavilov, it was open to the Federal Court to hone in on the fact that the CBSA official made no reference to his earlier decision or to the longstanding departmental practice of accepting name change requests without certain supporting documentation. I therefore agree with the Federal Court’s conclusion that the CBSA’s decisions lack justification, transparency and intelligibility.\n\nFinally, the appellant challenges the Federal Court’s factual finding that the CBSA had a policy dating back from the inception of the TARO program of approving post-importation name changes. They argue that, in the absence of direct evidence, the Federal Court could only consider serious, precise and concordant presumptions, the like of which do not arise from this record. The respondent, on the other hand, asserts that there was direct evidence as well as supportive indirect evidence allowing the Applications Judge to find that the CBSA “arguably endorsed” such a practice.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-20", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 42–43", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "I accept the appellant’s submission that the testimonies of Bernie Tevel and Stephen Yanow are not sufficient to establish that the CBSA was aware of and endorsed Honey Fashions’ practice to claim duty remission on goods previously imported by others. These individuals could certainly testify that the CBSA routinely accepted name change notifications changing the name of the importer of record on the customs entry forms from the original importer to the Canadian manufacturer, without any indication as to whether the agreement was made prior to or after the importation. But they cannot purport to know what the CBSA was aware of at the time these decisions were made, and in particular whether the CBSA was aware that the importer name changes were based on post-importation agreements. This is precisely why the Federal Court was careful to state that this procedure was accepted “and arguably endorsed” by the CBSA (Reasons, at para. 47).\n\nThis is not the only basis, however, upon which the Federal Court came to the conclusion that there is direct evidence that the CBSA consistently accepted post-importation name change notifications to allow Schedule 1 manufacturers to claim remissions for goods previously imported by others. It noted that this administrative process was not flagged during the QAR as an unacceptable or illegitimate practice, and was not objected to in the course of the audits to which Honey Fashions was subjected at least three times (Reasons, at para. 48). These factual findings are entitled to a high degree of deference.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-21", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 44–46", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "The appellant further submits that the Federal Court improperly relied on indirect evidence (primarily an internal memorandum from a Minister of Finance official dated April 26, 1993, and Memorandum D8-11-7) to conclude that the CBSA accepted post-importation name change notifications. I agree with the appellant that these two documents are inconclusive and would be insufficient, in and of themselves, to establish that the CBSA has endorsed and condoned post-importation name change agreements. However, this is beyond the point.\n\nFirst of all, it is not at all clear that the Federal Court relied on that evidence to reach its conclusion. There was enough direct evidence to the same effect in the record. More importantly, Memorandum D8-11-7 could not have been offered as proof of the CBSA practice, since it was only released in late 2014. It could only be presented as being consistent with the alleged CBSA practice and in support of the direct evidence. Ultimately, I find the indirect evidence of little help for the resolution of the questions before us.\n\nIn light of all the foregoing, I am of the view that the Federal Court did not err in finding that the decision by the CBSA not to accept the name change requests was unreasonable. If anything, that conclusion is bolstered by the recent decision of the Supreme Court in Vavilov, with its insistence on the need for a reasonable decision to be justified in light of the legal and factual constraints that bear on that decision. A decision maker cannot deviate from earlier decisions or from a longstanding past practice, especially when it is too late for those affected by these decisions to adjust their behaviour accordingly, without providing a reasonable explanation for that departure.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-22", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 47–49", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "As for the Federal Court’s finding that the CBSA’s refusal to accept Honey Fashions’ importer name change requests were made contrary to its legitimate expectations, I need not say much. I agree with the appellant that the respondent did not raise the duty of fairness before the Federal Court either in its Notices of Application, in its Memoranda of Fact and Law, or at the hearing. Allegations were made that the decisions being challenged were unfair and arbitrary, but these arguments were meant to substantiate the purported unreasonableness of the decisions, not a breach of procedural fairness.\n\nAs a matter of fairness, courts should constrain themselves to the grounds raised in the pleadings. As the Supreme Court stated in Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543 at para. 9, “each party is entitled to know and respond to the case that it must answer”. I accept that the respondent did argue unfairness in relation to its legitimate expectations, but this was not sufficient in my view to squarely raise procedural fairness per se. It is clear from a transcript of the hearing that the parties never joined issue on that question (see, in particular, Appeal Book, vol. 2, at pp. 629, 657 and 671), and it was therefore an error of law for the Federal Court to conclude that the appellant violated Honey Fashions’ legitimate expectations.\n\nBe that as it may, the Federal Court’s procedural fairness analysis was really a substantive review in disguise. Its conclusion with respect to procedural fairness appears to be nothing more than a restatement of its conclusion on substantive reasonableness, as is readily apparent from these two findings:", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-23", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "paras 50–51", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "Finally, I also agree with the appellant that the doctrine of legitimate expectations cannot give rise to substantive rights: Agraira at para. 97; Reference Re Canada Assistance Plan (B.C.), [1991] 2 S.C.R. 525, 83 D.L.R. (4th) 297 at p. 557; JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557 at para. 75. Past practices, therefore, could not ground a legitimate expectation that a request for a name change to the importer of record would be granted in the future even if such a practice is established. The Court may only grant appropriate procedural remedies in the event that the conditions for the application of this doctrine are met: see C.U.P.E. v. Ontario (Minister of Labour), 2003 SCC 29, [2003] 1 S.C.R. 539 at para. 131.\n\nMoreover, legitimate expectations is only one of the factors to be considered in determining what procedural fairness requires in a given context: Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 174 D.L.R. (4th) 193 at paras. 22-28. In the case at bar, there is no suggestion that Honey Fashions was not given a fair procedure, including notice and an opportunity to provide additional substantiation for its claims. I find, therefore, that the Federal Court erred in concluding that the decision by the CBSA not to grant the name change requests was made in breach of its duty of fairness.", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-466027-24", + "doc_type": "caselaw", + "act_code": "2020 FCA 64", + "act_short": "Honey Fashions", + "act_name": "Canada (Attorney General) v. Honey Fashions Ltd.", + "section": "", + "citation": "Canada (Attorney General) v. Honey Fashions Ltd., 2020 FCA 64", + "marginal_note": "para 52", + "heading": "Customs; judicial review of the Canada Border Services Agency's exercise of discretion", + "part": "Federal Court of Appeal", + "division": "", + "text": "For all of the above reasons, I would dismiss the appeal, maintain the judgment of the Federal Court, and return the remission claims of Honey Fashions to the CBSA for redetermination in accordance with these reasons, the whole with costs in this Court and in the Court below. I would amend the style of cause and remove the President of the Canada Border Services Agency as an appellant. The style of cause on these Reasons and on the Judgment should reflect this amendment. “Yves de Montigny” J.A. “I agree Richard Boivin J.A.” “I agree Mary J.L. Gleason J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-407-18 STYLE OF CAUSE: THE ATTORNEY GENERAL OF CANADA v. HONEY FASHIONS LTD PLACE OF HEARING: Montréal, Quebec DATE OF HEARING: November 6, 2019 REASONS FOR JUDGMENT BY: DE MONTIGNY J.A. CONCURRED IN BY: BOIVIN J.A. GLEASON J.A. DATED: March 19, 2020 APPEARANCES: Stéphanie Lauriault David Di Sante For The Appellant Peter Kirby Alexandra Logvin For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Appellant Fasken Martineau DuMoulin LLP Montréal, Quebec For The Respondent", + "current_to": "2020-03-19", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/466027/index.do" + }, + { + "id": "fca-419470-1", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "paras 1–3", + "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "part": "Federal Court of Appeal", + "division": "", + "text": "Mr. Hociung appeals from the judgment of the Federal Court (per Gleeson J.) granting the respondent’s motion for summary judgment and dismissing his action (2018 FC 298).\n\nIn a companion appeal in file A-101-18, Mr. Hociung appeals the order of the Federal Court (per Gleeson J.) dismissing his motion for leave to amend the statement of claim. Although two notices of appeal were filed, these two decisions are linked and the findings in respect of the motion for summary judgment may have an impact on the merits of the proposed amendments.\n\nThe Canada Border Services Agency (the CBSA) seized four $50 USD Buffalo Bullion coins and twenty $1 USD Silver Eagle coins when Mr. Hociung failed to declare these precious metal coins as “goods” upon his entry into Canada from the United States allegedly in contravention of section 12 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (the Customs Act).", + "current_to": "2019-08-07", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fca-caf.gc.ca/fca-caf/decisions/en/item/419470/index.do" + }, + { + "id": "fca-419470-2", + "doc_type": "caselaw", + "act_code": "2019 FCA 214", + "act_short": "Hociung", + "act_name": "Hociung v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Hociung v. Canada (Public Safety and Emergency Preparedness), 2019 FCA 214", + "marginal_note": "para 4", + "heading": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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": "Customs Act seizure and forfeiture; the meaning of imported goods and their valuation", + "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 NAMES OF COUNSEL AND SOLICITORS OF RECORD APPEAL FROM A JUDGMENT OF THE HONOURABLE JUSTICE GLEESON DATED MARCH 15, 2018, NO. T-1450-15 DOCKET: A-102-18 STYLE OF CAUSE: RADU HOCIUNG v. MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: May 23, 2019 REASONS FOR JUDGMENT BY: GAUTHIER J.A. CONCURRED IN BY: WEBB J.A. RIVOALEN J.A. DATED: AUGUST 7, 2019 APPEARANCES: Radu Hociung For The Appellant ON HIS OWN BEHALF Eric Peterson For The Respondent SOLICITORS OF RECORD: Nathalie G. Drouin Deputy Attorney General of Canada For The Respondent", + "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": "fc-64594-1", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 1–3", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "This is an application for judicial review of a decision of an officer of Citizenship and Immigration Canada (the Officer) denying the Applicant’s application for a temporary resident visa and determining that the Applicant engaged in misrepresentation with the result, pursuant to subsection 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 (the IRPA), that he is inadmissible to Canada for a period of two years. The application is brought pursuant to subsection 72(1) of the IRPA. Background\n\nThe Applicant is a citizen of Mauritius. He was granted a study permit for the period December 24, 2006 to January 31, 2008. This was renewed for the period January 4, 2008 to September 27, 2008 and he was issued a work permit on April 4, 2008, also valid to September 27, 2008 which permitted him to work up to 20 hours a week during regular academic sessions and full time during scheduled breaks. The work permit is referred to by Citizenship and Immigration Canada (CIC) as an off-campus work permit (OCWP). His study permit was again renewed for the period September 15, 2008 to April 30, 2009 and an OCWP on the same terms was issued on October 15, 2008 also valid to April 30, 2009. A final study permit and OCWP were issued on April 24, 2009 valid to May 16, 2012.\n\nFrom January 2010 to December 2010, the Applicant attended the Northern Alberta Institute of Technology (NAIT) and successfully completed a full-time, one year Water and Waste Technician Program. While attending the NAIT, he held a part time practicum position at IVIS Inc., from May 2010 to September 2010, as permitted by the OCWP.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-2", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 4–7", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Upon graduation, the Applicant commenced full time employment with IVIS Inc., as of December 20, 2010 and continuing to September 2012. He was no longer a student and did not obtain an alternate work permit until June 1, 2012.\n\nOn November 3, 2011, the Applicant was refused a temporary resident visa by the CIC office in Los Angeles.\n\nThe Applicant applied for, and on June 1, 2012 was issued, a work permit valid to June 1, 2014, permitting the Applicant to work at IVIS Inc.\n\nThe Applicant again applied for a temporary residency visa on October 11, 2012 at the CIC Seattle office. In that application, in reply to the question “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country.” He responded “no” and did not disclose the November 3, 2011 temporary residency visa refusal in Los Angeles.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-3", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 8–9", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "On October 31, 2012, the Officer sent the Applicant a “fairness letter” pointing out that the Applicant had failed to disclose the prior temporary residency visa refusal in Los Angeles. This stated, in part: It is difficult to escape the conclusion that your failure to disclose the previous refused TRV application in your application to this office was a deliberate attempt to conceal both the refusals themselves and the reasons for them. Immigration records in Canada together with the information and evidence submitted in your application indicate that you engaged in unauthorized full-time employment whilst you were the holder of an off-campus work permit. The record shows that you were requested to surrender the document but failed to comply. This was the primary reason for the refusal of your application by the Los Angeles office. Your failure to disclose the refusal of your application in that office, therefore, could have induced an error in the administration of the Act and regulations.\n\nThe letter also referred to subsection 40(1)(a) of the IRPA which states that a foreign national is inadmissible due to misrepresentation as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. The Applicant was given an opportunity to provide an explanation or documentary evidence to address this issue.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-4", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 10–12", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In response, the Applicant submitted a Statutory Declaration in which he stated that a clerical error had been made by the immigration consultant who helped him with his application with the result that he had answered “no” to the question, “Have you ever been refused any kind of visa, admission, or been ordered to leave Canada or any other country?” when the correct answer was “yes”. He stated that this was not an intentional mistake, and, that he had never engaged in any unauthorized full-time employment while he was the holder of an OCWP and had never received any request from any immigration office to surrender any document. He attached all of the study and work permits he had received.\n\nThe Applicant also submitted a statutory declaration by Mr. Randy McDonald who identified himself as an administrative assistant at Canwrx Group Ltd., the immigration consultant that had acted as the Applicant’s representative in making the October 2012 temporary residency visa application. Mr. McDonald confirmed that he had made the clerical error described above.\n\nBy letter dated January 8, 2013, the Officer advised the Applicant that he did not meet the requirements for a temporary resident visa. Decision Under Review", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-5", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 13", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In the January 8, 2013 letter, the Officer stated that he was not satisfied that the Applicant met the requirements of the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-22 (the IRPA Regulations) and that the Officer was, therefore, refusing his application. [13] The basis for the refusal was that the Officer was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident as he had contravened the conditions of admission on a previous stay in Canada and as he had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA. Specifically, the Applicant had denied previously being refused a visa when, in fact, he had been refused by the CIC Los Angeles office. Further, that the Applicant had denied engaging in unauthorized employment whereas the record and his own application indicated otherwise. The letter also stated that the Applicant had no authority to work after he completed his studies at the NAIT. As it had been determined that the Applicant had engaged in misrepresentation pursuant to subsection 40(1)(a) of the IPRA, the Applicant was inadmissible to Canada for a period of two years. Applicable Law and Policy", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-6", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 14", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The relevant provisions of the IRPA are as follows: PART 1 IMMIGRATION TO CANADA DIVISION 1 REQUIREMENTS AND SELECTION Requirements 11. (1) A foreign national must, before entering Canada, apply to an officer for a visa or for any other document required by the regulations. The visa or document may be issued if, following an examination, the officer is satisfied that the foreign national is not inadmissible and meets the requirements of this Act. […] Obligation — answer Truthfully 16. (1) A person who makes an application must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires. […] Misrepresentation 40. (1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this Act; […] (2) The following provisions govern subsection (1): (a) the permanent resident or the foreign national continues to be inadmissible for misrepresentation for a period of two years following, in the case of a determination outside Canada, a final determination of inadmissibility under subsection (1) or, in the case of a determination in Canada, the date the removal order is enforced; and […] PARTIE 1 IMMIGRATION AU CANADA SECTION 1 FORMALITÉS ET SÉLECTION Formalités 11. (1) L’étranger doit, préalablement à son entrée au Canada, demander à l’agent les visa et autres documents requis par règlement. L’agent peut les délivrer sur preuve, à la suite d’un contrôle, que l’étranger n’est pas interdit de territoire et se conforme à la présente loi. […] Obligation du Demandeur 16.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-7", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 14", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "(1) L’auteur d’une demande au titre de la présente loi doit répondre véridiquement aux questions qui lui sont posées lors du contrôle, […] Fausses déclarations 40. (1) Emportent interdiction de territoire pour fausses déclarations les faits suivants : a) directement ou indirectement, faire une présentation erronée sur un fait important quant à un objet pertinent, ou une réticence sur ce fait, ce qui entraîne ou risque d’entraîner une erreur dans l’application de la présente loi; […] (2) Les dispositions suivantes s’appliquent au paragraphe (1): (a) l’interdiction de territoire court pour les deux ans suivant la décision la constatant en dernier ressort, si le résident permanent ou l’étranger n’est pas au pays, ou suivant l’exécution de la mesure de renvoi; […]", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-8", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 15", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The relevant provisions of the IRPA Regulations state: PART 9 TEMPORARY RESIDENTS DIVISION 1 TEMPORARY RESIDENT VISA 179. An officer shall issue a temporary resident visa to a foreign national if, following an examination, it is established that the foreign national (a) has applied in accordance with these Regulations for a temporary resident visa as a member of the visitor, worker or student class; (b) will leave Canada by the end of the period authorized for their stay under Division 2; (c) holds a passport or other document that they may use to enter the country that issued it or another country; (d) meets the requirements applicable to that class; (e) is not inadmissible; and (f) meets the requirements of subsections 30(2) and (3), if they must submit to a medical examination under paragraph 16(2)(b) of the Act. PARTIE 9 RÉSIDENTS TEMPORAIRES SECTION 1 VISA DE RÉSIDENT TEMPORAIRE 179. L’agent délivre un visa de résident temporaire à l’étranger si, à l’issue d’un contrôle, les éléments suivants sont établis: a) l’étranger en a fait, conformément au présent règlement, la demande au titre de la catégorie des visiteurs, des travailleurs ou des étudiants; b) il quittera le Canada à la fin de la période de séjour autorisée qui lui est applicable au titre de la section 2; c) il est titulaire d’un passeport ou autre document qui lui permet d’entrer dans le pays qui l’a délivré ou dans un autre pays; d) il se conforme aux exigences applicables à cette catégorie; e) il n’est pas interdit de territoire; f) s’il est tenu de se soumettre à une visite médicale en application du paragraphe 16(2) de la Loi, il satisfait aux exigences prévues aux paragraphes 30(2) et (3).", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-9", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 16–17", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "CIC has also produced a policy document entitled ENF 2 – Evaluating Inadmissibility (ENF 2) which is intended to assist visa offices in assessing misrepresentation. While such guidelines or operational manuals do not have the force of law, they have been recognized by this Court as valuable guidelines to immigration officers in carrying out their duties (Canada (Minister of Public Safety and Emergency Preparedness) v Martinez-Brito, 2012 FC 438 at para 46; Baker v Canada (Minister of Citizenship and Immigration), [1991] 2 SCR 817 [Baker]; Agraira v Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 at para 85).\n\nENF 2 states that the purpose of the misrepresentation provisions is to ensure that applicants provide complete, honest and truthful information in every manner when applying for entry into Canada (section 9.1) and that persons who misrepresent or withhold material facts, either directly or indirectly, relating to a relevant matter that induces or could induce an error in the administration of the Act are inadmissible to Canada pursuant to subsection 40(1)(a) of the IRPA. Misrepresentation and withholding are defined as direct and indirect misrepresentation (section 9.2). The document also describes the principles applicable to relevancy as well as materiality and provides examples of these (section 9.4). It also addresses errors in the administration of the IRPA (section 9.5). Issues", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-10", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 18–20", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "I would frame the issue in this matter as being whether it was reasonable for the Officer to conclude that there was a material misrepresentation. Standard of Review [18] The majority of the Supreme Court has held that “[a]n exhaustive analysis is not required in every case to determine the proper standard of review.” Courts must first ascertain whether the jurisprudence has already determined in a satisfactory manner the degree of deference to be accorded to a decision-maker with regard to a particular category of question (Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190 at paras 57 and 62 [Dunsmuir]; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339 at para 53 [Khosa]).\n\nThis Court has previously held that the standard of review to be applied when determining whether an immigration officer made a reviewable error in concluding that an applicant made a material misrepresentation pursuant to subsection 40(1)(a) of the IRPA is reasonableness. Misrepresentation is an issue of mixed fact and law and is therefore reviewable on the reasonableness standard (Oloumi v Canada (Minister of Citizenship and Immigration), 2012 FC 428 at para 12 [Oloumi]; Karami v Canada (Minister of Citizenship and Immigration), 2009 FC 788 at para 14).\n\nWhen reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility of the decision-making process and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law” (Dunsmuir, above, at para 47; Khosa, above at para 59). Positions of the Parties The Applicant", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-11", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 21–24", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Applicant’s position is that there was no misrepresentation but, even if there was, it was not material.\n\nThe Applicant submits that he brought the error to the attention of the immigration consultant who was assisting him and that he believed that the error would be corrected before the consultant submitted the application. He was not dishonest and did not knowingly misrepresent his immigration history. He reasonably and honestly believed at the time the application was made that he was not withholding material information. In this regard he relies on Medel v Canada, [1990] FCJ No 318 (CA)(QL) [Medel] and distinguishes Oloumi, above, and Haque v Canada (Minister of Citizenship and Immigration), 2011 FC 315 [Haque] on their facts. He also submits that he responded to the fairness letter in an effort to explain the error and provided copies of his study visas and his work permits.\n\nFurther, the Applicant submits that only if information affects the process undertaken or the final decision will it be considered to be material (ENF 2; Ali v Canada (Minister of Citizenship and Immigration), 2008 FC 166 [Ali]). Here the answer to the question of whether he had previously been denied a visa was not material to the process because the application was complete and could be processed regardless of the answer provided. Nor did his answer put into doubt other important information about himself. The Respondent\n\nThe Respondent submits that the Applicant’s failure to disclose the previous temporary resident visa application constituted a material misrepresentation.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-12", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 25–26", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Respondent refers to the requirements of the IRPA, the IRPA Regulations as well as ENF 2 and concludes that the Officer properly applied these provisions which required the Applicant to provide complete and truthful information. The failure to disclose the previous temporary residency visa refusal was a relevant matter to weigh when considering the Applicant’s subsequent application and could have induced an error in the administration of the IRPA. Accordingly, the failure to disclose this matter renders the Applicant inadmissible by virtue of section 40 of the IRPA and the Decision is therefore, reasonable. The Respondent relies on Oloumi and Haque, both above, in support of its position.\n\nThe Respondent submits that the Applicant was aware of the error in his application and, while he may have brought this to the attention of his immigration consultant, he himself signed and declared the application to contain truthful answers. Accordingly, this error was not beyond his control, he was alive to it and could and should have reviewed the application prior to signing it to ensure that the error had been rectified and that the application was accurate. Therefore, the Applicant cannot now claim that he honestly and reasonably believed in the veracity of the answers (Oloumi, above, Khorasgani v Canada (Minister of Citizenship and Immigration), 2012 FC 1177 at paras 14-18). The Respondent submits that the Applicant’s reliance on Medel, above is misplaced in the circumstances of this case.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-13", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 27", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Further, in response to the fairness letter, the Applicant provided a statutory declaration stating that he had never engaged in any unauthorized full time employment while a holder of an OCWP and that he had never received a request from an immigration officer to surrender his OCWP. The Officer examined the file and determined that this contradicted the Applicant’s own application, the CIC record and other evidence. Accordingly, it was open for the Officer to conclude that the Applicant had continued to be dishonest. This indicated a pattern of providing untruthful information in breach of the Applicant’s statutory duty of candour and therefore justified the Officer’s decision. Analysis", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-14", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 28", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In Oloumi, above, Justice Tremblay-Lamer describes general principles arising from this Court’s treatment of section 40 of the IRPA which are summarized below together with other such principles arising from the jurisprudence: - Section 40 is to be given a broad interpretation in order to promote its underlying purpose (Khan v Canada (Minister of Citizenship and Immigration), 2008 FC 512 at para 25 [Khan]); - Section 40 is broadly worded to encompasses misrepresentations even if made by another party, including an immigration consultant, without the knowledge of the applicant (Jiang v Canada (Minister of Citizenship and Immigration), 2011 FC 942 at para 35 [Jiang]; Wang v Canada (Minister of Citizenship and Immigration), 2005 FC 1059 at paras 55-56 [Wang]); - The exception to this rule is narrow and applies only to truly extraordinary circumstances where an applicant honestly and reasonably believed that they were not misrepresenting a material fact and knowledge of the misrepresentation was beyond the applicant’s control (Medel, above); - The objective of section 40 is to deter misrepresentation and maintain the integrity of the immigration process.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-15", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 28", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "To accomplish this, the onus is placed on the applicant to ensure the completeness and accuracy of their application (Jiang, above, at para 35;Wang, above, at paras 55-56); - An applicant has a duty of candour to provide complete, honest and truthful information in every manner when applying for entry into Canada (Bodine v Canada (Minister of Citizenship and Immigration), 2008 FC 848 at para 41; Baro v Canada (Minister of Citizenship and Immigration), 2007 FC 1299 at para 15); - As the applicant is responsible for the content of an application which they sign, the applicant’s belief that he or she was not misrepresenting a material fact is not reasonable where they fail to review their application and ensure the completeness and veracity of the document before signing it (Haque, above, at para 16; Cao v Canada (Minister of Citizenship and Immigration), 2010 FC 450 at para 31 [Cao]); - In determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose (Oloumi, above, at para 22); - A misrepresentation need not be decisive or determinative. It is material if it is important enough to affect the process (Oloumi, above, at para 25); - An applicant may not take advantage of the fact that the misrepresentation is caught by the immigration authorities before the final assessment of the application. The materiality analysis is not limited to a particular point in time in the processing of the application. (Haque, above, at paras 12 and 17; Khan, above, at paras 25, 27 and 29; Shahin v Canada (Minister of Citizenship and Immigration), 2012 FC 423 at para 29 [Shahin]);", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-16", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 29–30", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "Here, the Applicant submits that he had no knowledge of the misrepresentation which was caused by his immigration consultant’s failure to correct a clerical error. The Applicants submits that he instructed the consultant to change the answer of “no” to “yes” in response to the question “Have you ever been refused any kind of visa, admission or been ordered to leave Canada or another country?” However, that the consultant failed to do so before submitting the application.\n\nAs noted above, subsection 40(1)(a) is broadly worded as to include misrepresentations even if made by another party without the knowledge of the applicant, the general rule being that a misrepresentation can occur without the applicant’s knowledge (Jiang, above, at para 35; Cao; above, at para 31; Haque, above, at para 15;Wang, above, at paras 55-56; Shahin, above, at para 26).", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-17", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 31", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "While an exception to this principle arises where an applicant can show that he or she honestly and reasonably believed that they were not withholding material information (Medel, above), this exception is narrow. As the court stated in Oloumi, above: [35] Despite being frequently cited, the “exception” referred to in this passage has received limited application. Its originating case, Medel, above, involved an unusual set of facts: the applicant was being sponsored by her husband, but unbeknownst to her the husband withdrew his sponsorship. Canadian officials then misled the applicant by asking her to return the visa because they claimed it contained an error. They implied it would be returned to her, corrected. The applicant had English-speaking relatives inspect the visa and, after they assured her that nothing was wrong with it, she used it to enter Canada. The Immigration Appeal Board found her to be a person described in section 27(1)(e) of the former Immigration Act, 1976, SC 1976-77, c 52 [now RSC 1985, c I-2)], i.e. that she had been “granted landing… by reason of any fraudulent or improper means”. This finding was set aside by the Federal Court of Appeal because the applicant had “reasonably believed” that she was not withholding information relevant to her admission. [36] When considered within its factual context, therefore, the exception in Medel is relatively narrow. As Justice MacKay noted while distinguishing the case before him in Mohammed v Canada (Minister of Citizenship & Immigration), 1997 CanLII 5084 (FC), [1997] 3 FC 299: 41 The present circumstances may also be distinguished from those in Medel on the basis that the information which the applicant failed to disclose was not information regarding which he was truly subjectively unaware.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-18", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 31–32", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The applicant in the present case was not unaware that he was married. Nor was it information, as in Medel, the knowledge of which was beyond his control. This was not information which had been concealed from him or about which he had been misled by Embassy officials. The applicant's alleged ignorance regarding the requirement to report such a material change in his marital status and his inability to communicate this information to an immigration officer upon arrival does not, in my opinion, constitute “subjective unawareness” of the material information as contemplated in Medel. Furthermore, I emphasize that a determinative factor in the Medel case was that the applicant had reasonably believed that she was not withholding information from Canadian authorities. In contrast, in the case before this Court the applicants did not act reasonably—the principal applicant failed to review his application to ensure its accuracy.\n\nIn Haque, above, the applicants therein similarly argued that the misrepresentations were not intentional and that it was their consultant who erred in filling out the application. Justice Mosley rejected this argument and stated the following: [15] […] Nonetheless, he signed the application and so cannot be absolved of his personal duty to ensure the information he provided was true and complete. This was expressed succinctly by Justice Robert Mainville at para 31 of Cao, supra: The Applicant signed her temporary residence application and consequently must be held personally accountable for the information provided in that application. It is as simple as that.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-19", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 33", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The present case is also factually very similar to Diwalpitiye v Canada (Minister of Citizenship and Immigration), 2012 FC 885 [Diwalpitiye]. The applicant therein indicated on his application form that he had never applied for, or been refused, immigration status in Canada. When the officer raised this as a concern in a fairness letter, the applicant responded by explaining that he had previously applied for a temporary resident visa, which was refused, but a subsequent application was successful. While he admitted this error in completing the application form, he requested that his application be processed because the error was merely an oversight. Justice Rennie found that the applicant had not persuaded the Court that it was unreasonable for the officer to find this to be a material misrepresentation.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-20", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 34–36", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In my view, the Applicant in this case clearly made a misrepresentation by failing to disclose the prior CIC Los Angeles refusal to issue a temporary residency visa in his October 2012 application. He was aware of the error in his application and was responsible for ensuring that, when submitted, his application was accurate and truthful. However, he failed to review the application before it was submitted. Further, the fact of the prior refusal and of the identified clerical error in his application and whether or not it had been corrected was information that was within his control. The Applicant therefore failed to demonstrate that he honestly and reasonably believed that he was not withholding potentially material information. This situation does not, therefore, fall within the narrow exception found in Medel, above. It was reasonable for the Officer to conclude that the Applicant had not answered all of the questions in his application truthfully as required by subsection 16(1) of the IRPA and had misrepresented that fact.\n\nThis leaves only the question of whether the misrepresentation was material.\n\nSubsection 40(1)(a) of the IRPA states that a foreign national is inadmissible for misrepresentation for directly or indirectly misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. ENF 2 gives as an example of a situation constituting misrepresentation, one where an applicant fails to disclose that they recently applied for a visa to Canada.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-21", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 37–38", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "As noted above, in determining whether a misrepresentation is material, regard must be had for the wording of the provision and its underlying purpose. To be material, a misrepresentation need not be decisive or determinative. It will be material if it is important enough to affect the process. The wording of section 40 confirms that a misrepresentation does not actually have to induce an error, it is enough that it could do so (IRPA, subsection 40(1)(a); Oloumi, above, at paras 22 and 25; Haque, above, at para 11; Mai v Canada (Minister of Public Safety and Emergency Preparedness), 2011 FC 101 at para 18; Nazim v Canada (Minister of Citizenship and Immigration), 2009 FC 471)).\n\nIn Haque, above, the applicant failed to disclose that he had formerly lived and studied in the United States and omitted or misrepresented details with respect to his place of residence, education and employment history. The deciding officer discovered the omission upon a review of CIC’s records. This Court held that the withheld information was material to the application as, without it, a visa could have been issued to the applicant without the required police and conduct certificates from the United States, thereby precluding a necessary investigation and inducing an error in the administration of the IRPA.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-22", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 39–41", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In Oloumi, above, a fraudulent English test was submitted as part of an application for permanent residence in the Federal Skilled Worker class. This Court held that the misrepresented fact was material because federal skilled workers must demonstrate language proficiency to be accepted. The false document could have induced an error in the administration of the IRPA because it could have been relied upon by a decision-maker to conclude that the applicant had demonstrated language proficiency.\n\nIn the present case, the Respondent submits that the Officer could have been prevented from undertaking an appropriate investigation and verification process and, therefore, could have erroneously determined that the Applicant met all the requirements of the IRPA had the Officer relied on the Applicants denial of a prior visa refusal. The misrepresentation was therefore material as it could have affected the process.\n\nIn my view, the misrepresentation in this case was material.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-23", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 42", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Officer does not specify what investigation and verification process potentially could have been bypassed as a result of the misrepresentation. However, section 9.5 of ENF 2 states that officers are required to be satisfied that a person meets the requirements of the IRPA and is not inadmissible. To make these determinations officers decide what procedures, including investigations, interviews and verifications are required. Some procedures are required by law, others are administrative. Given this discretion, and although it would have been preferable for the Officer to have been more specific, the failure to do so is not fatal. In any event, had he relied solely on the application which did not disclose the prior visa refusal, this could have induced an error in the administration of the IRPA as he could have erroneously issued a visa to the Applicant.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-24", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 43–44", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "I also cannot accept the Applicant’s submission made when appearing before me that, because CIC has access to the whole of his immigration history, an incorrect answer in his application is not material. His submission was that the incorrect answer did not affect the process because it was caught by CIC before a decision was rendered. This reasoning is contrary to the object, intent and provisions of the IRPA which require applicants for temporary residency visas to answer all questions truthfully. The penalty for failing to do so is that an applicant may be found to be inadmissible to Canada if the misrepresentation induces or could induce an error in the administration of the Act. It matters not that CIC may have the ability to catch, or catches, the misrepresentation. What matters is whether the misrepresentation induced or could have induced such an error. Accordingly, applicants who take the risk of making a misrepresentation in their application in the hope that they will not be caught but, if they are, that they can escape penalty on the premise of materiality, do so at their peril.\n\nNor was the misrepresentation cured by the Applicant’s response to the fairness letter. In this regard Justice Mosley in Haque, above, stated that “this Court has rejected the argument that paragraph 40(1)(a) is inapplicable where the misrepresentation is “corrected”: (Khan v. Canada (Minister of Citizenship and Immigration), 2008 FC 512 at paras 25, 27 and 29).”", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-25", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 45", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "At the hearing before me the Applicant also submitted that because, between the time when the temporary residency visa was refused in Los Angeles and the time of the refusal in Seattle he was issued a work permit, this rendered the first refusal immaterial as the immigration authorities were clearly satisfied with his subsequent application. I cannot accept this reasoning. First, the refused applications were both for temporary residency visas, the work permit was a distinct application. Secondly, it is not known if the Applicant was requested to or did disclose the refused temporary residency when he applied for the work permit as neither the Applicant nor the Respondent led evidence on this point. And finally, the question asked on the temporary visa application was whether the Applicant had ever been refused any kind of visa, thus it was incumbent upon him to disclose the prior refusal regardless of the subsequent issuance of the work permit.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-26", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 46–47", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "In addition to the failure to disclose the refusal, which was his statutory and duty of candour, the Applicant stated in his Statutory Declaration that he had never engaged in any unauthorized full time employment while holding an OCWP. However, this is contradicted by Attachment A of his October 11, 2012 application and the September 7, 2012 letter from IVIS Inc., which states that when the Applicant completed his education at NAIT, he started full time work on December 20, 2012 with IVIS Inc. This means that from December 20, 2010 until he was issued a work permit on June 1, 2012, he was working full time while not a student and holding only an OCWP thereby contravening the conditions of his prior admission to Canada. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary residence based on the prior contravention was reasonable..\n\nIt should be noted, however, that the Officer’s assertion in the fairness letter that the Applicant was requested to surrender his OCWP but failed to comply and that this was the primary reason for the refusal of his Los Angeles application, is not supported by the CTR.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-27", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 48", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Respondent filed an affidavit of Ms. Leah Gabretensae, Admissions Unit Supervisor at CIC in response to the subject application. It attaches as an exhibit an email dated July 12, 2013 from Ms. Gabretensae to counsel for the Respondent stating that she had spoken to Rachel, no last name, at Norquest who confirmed that the Applicant was enrolled there from 2007 to April 24, 2009 taking upgrading courses with the intent of then entering the practical nursing program. He did not continue there beyond April 2009. The affidavit also attaches as an exhibit an email dated July 13, 2013 from Ms. Kathy Galloway to Ms. Gabretensae and counsel for the Respondent stating that NAIT had checked its records and advised her that the Applicant began his studies there in January 2010 and completed the one year Water and Waste Management Technician program in December 2010 with honours. The affidavit goes on to state that the designated institutional representative (DIR) “at the post-secondary educational institution where the Applicant was enrolled at that time [when the April 24, 2009 OCWP was issued] would have informed the Applicant that the Applicant was required to surrender the Work Permit to the nearest CIC office once he no longer met the eligibility criteria”. The affidavit states that it (the affidavit) was made for the purpose of opposing the Applicant’s application for judicial review.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-28", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "paras 49–50", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "It appears that the purpose of the affidavit was to bolster the CTR which contains no record supporting the finding by the Officer that the Applicant was actually asked, but refused, to surrender his OCWP nor explaining why he was not in compliance with the OCWP at some time before a February 1, 2012 GMCS entry which stated this to be the case but at which time the Applicant was enrolled full time at NAIT. The affidavit evidence as to the general responsibilities of DIR’s in administering OCWP’s, including informing students of the surrender requirements, is not evidence that the Applicant was requested to and refused to surrender same. Moreover, it is trite law that new evidence is only admissible on judicial review to resolve issues of procedural fairness or jurisdiction which exceptions have no application in this case (Oloumi, above, at para 10; Alabadleh v Canada (Minister of Citizenship and Immigration), 2006 FC 716 at para 6; Albajjali v Canada (Minister of Citizenship and Immigration), 2013 FC 660 at para 12).\n\nHowever, even in the absence of an evidentiary basis for the assertion that the Applicant was requested to and refused to surrender the OCWP and that this was the primary reason for the Los Angeles refusal, there was, as set out above, a sufficient evidentiary basis in the record before the Officer to support the fact that the Applicant worked full time while holding only a OCWP, after graduation from NAIT, from December 20, 2010 to June 1, 2012.", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-64594-29", + "doc_type": "caselaw", + "act_code": "2013 FC 971", + "act_short": "Goburdhun", + "act_name": "Goburdhun v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Goburdhun v. Canada (Citizenship and Immigration), 2013 FC 971", + "marginal_note": "para 51", + "heading": "Inadmissibility for misrepresentation under IRPA s. 40; a frequently-cited summary of the governing principles", + "part": "Federal Court", + "division": "", + "text": "The Applicant contravened the conditions of his admission to Canada on a prior occasion by working full time when not authorized to do so and he misrepresented this in his statutory declaration. He also misrepresented his prior temporary resident visa refusal. In my view, both misrepresentations were material. Accordingly, the Officer’s finding that he was not satisfied that the Applicant would leave Canada at the end of his stay as a temporary resident and that he had made material misrepresentations pursuant to subsection 40(1)(a) of the IRPA was reasonable and defensible in respect to the facts and the law. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed. No question of general importance for certification was proposed and none arises. “Cecily Y. Strickland” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-674-13 STYLE OF CAUSE: GOBURDHUN v MCI PLACE OF HEARING: Edmonton, Alberta DATE OF HEARING: August 27, 2013 REASONS FOR JUDGMENT AND JUDGMENT BY: STRICKLAND J. DATED: September 23, 2013 APPEARANCES: Ranbir S. Thind FOR THE APPLICANT Anna Kuranicheva FOR THE RESPONDENT SOLICITORS OF RECORD: Ranbir Thind & Associates Edmonton, Alberta FOR THE APPLICANT William F. Pentney Deputy Attorney General of Canada Edmonton, Alberta FOR THE RESPONDENT", + "current_to": "2013-09-23", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/64594/index.do" + }, + { + "id": "fc-492842-1", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 1", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Lorebeth Garcia’s application for permanent residence as a member of the live-in caregiver class was refused because her husband, Joresce Ballesteros, was found criminally inadmissible to Canada. That inadmissibility was based on a bar fight in the Philippines in 2006 that resulted in charges against Mr. Ballesteros that were later withdrawn when the complainant filed an Affidavit of Desistance stating that the accused parties, including Mr. Ballesteros, had no intention to kill or injure him and that if called to testify, his testimony would completely exonerate the accused. A visa officer concluded that Mr. Ballesteros’ acts amounted to assault causing bodily harm under sections 265 and 267 of the Criminal Code, RSC 1985, c C-46, and that despite the withdrawal of the charges there were reasonable grounds to believe that the offence had occurred. They therefore concluded Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-2", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 2–4", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "For the reasons given below, I agree with Ms. Garcia that the visa officer’s decision was unreasonable and unfair. The visa officer did not undertake the requisite assessment of the elements of the Canadian offence, and in particular the defence of self-defence that Mr. Ballesteros had maintained since the charges were filed. Nor did the visa officer adequately assess the evidence as a whole, set out why they did not accept Mr. Ballesteros’ evidence, or explain why the evidence continued to provide reasonable grounds to believe an offence was committed notwithstanding the complainant’s Affidavit of Desistance. Finally, it was unreasonable for the visa officer to assume the Affidavit of Desistance and subsequent withdrawal of the charges resulted from a settlement in the absence of evidence to that effect. It was also unfair to have done so without giving Ms. Garcia notice of this issue and an opportunity to respond thereto.\n\nThe application for judicial review is therefore allowed.\n\nWhile phrased somewhat differently, the primary issues raised by Ms. Garcia on this application for judicial review are the following: Did the visa officer err in finding that Mr. Ballesteros was inadmissible pursuant to paragraph 36(1)(c) of the IRPA by failing to undertake the required analysis of the offence and/or unreasonably assessing the evidentiary record? Did the visa officer breach the duty of procedural fairness in reaching their decision?", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-3", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 5–6", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The parties agree that the first of these issues goes to the merits of the visa officer’s decision and is reviewable on the reasonableness standard: Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 16–17, 23–25. To assess the reasonableness of a decision, the Court considers “the outcome of the administrative decision in light of its underlying rationale, in order to ensure that the decision as a whole is transparent, intelligible and justified”: Vavilov at paras 15. In doing so, the Court considers the administrative context of the decision, including the institutional setting and the evidence and submissions before the decision maker: Vavilov at paras 89–96, 125–128. A reasonable decision has an “internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker”: Vavilov at paras 85, 90, 99, 105–107. While reasonableness review is “robust,” the Court will not set aside a decision unless satisfied there are “sufficiently serious shortcomings such that it cannot be said to exhibit the requisite degree of justification, intelligibility and transparency”: Vavilov at paras 12–13, 99–100.\n\nThe second issue goes to the process leading to the decision, rather than the substance of the decision itself. On such issues, the Court asks whether a fair and just process was followed, having regard to all of the circumstances: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54. Such review is “best reflected in the correctness standard,” although no standard of review is actually being applied: Canadian Pacific at para 54, quoting Eagle’s Nest Youth Ranch Inc v Corman Park (Rural Municipality #344), 2016 SKCA 20 at para 20.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-4", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 7–8", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I note for completeness that Ms. Garcia’s application for judicial review also raised an issue regarding the visa officer’s failure to consider deemed rehabilitation. That argument was withdrawn at the hearing.\n\nMs. Garcia has worked in Canada as a live-in caregiver since 2009. She applied for permanent residence in 2011 as a member of the then “live-in caregiver class” and added her husband, Mr. Ballesteros, as an accompanying dependent in the application in 2014. Ms. Garcia’s application was governed by, among other provisions, subparagraph 72(1)(e)(i) of the Immigration and Refugee Protection Regulations, SOR/2002-227, which requires a foreign national in Canada seeking to become a permanent resident to establish that “they and their family members, whether accompanying or not, are not inadmissible.”", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-5", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 9", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Subsection 36(1) of the IRPA sets out grounds for inadmissibility for serious criminality. While the only applicable provision in the current case is paragraph 36(1)(c), I also reproduce paragraph 36(1)(b) as it is relevant to some of the discussion below: Serious criminality Grande criminalité 36 (1) A permanent resident or a foreign national is inadmissible on grounds of serious criminality for 36 (1) Emportent interdiction de territoire pour grande criminalité les faits suivants : […] […] (b) having been convicted of an offence outside Canada that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years; or b) être déclaré coupable, à l’extérieur du Canada, d’une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans; (c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an offence under an Act of Parliament punishable by a maximum term of imprisonment of at least 10 years. c) commettre, à l’extérieur du Canada, une infraction qui, commise au Canada, constituerait une infraction à une loi fédérale punissable d’un emprisonnement maximal d’au moins dix ans.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-6", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 10–12", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Section 33 of the IRPA provides that the facts that constitute criminal inadmissibility include those for which there are “reasonable grounds to believe” have occurred: Rules of interpretation Interprétation 33 The facts that constitute inadmissibility under sections 34 to 37 include facts arising from omissions and, unless otherwise provided, include facts for which there are reasonable grounds to believe that they have occurred, are occurring or may occur. 33 Les faits — actes ou omissions — mentionnés aux articles 34 à 37 sont, sauf disposition contraire, appréciés sur la base de motifs raisonnables de croire qu’ils sont survenus, surviennent ou peuvent survenir.\n\nThe Supreme Court of Canada has described this standard as being more than mere suspicion, but less than a balance of probabilities: Mugesera v Canada (Minister of Citizenship and Immigration), 2005 SCC 40 at para 114. Reasonable grounds exist “where there is an objective basis for the belief which is based on compelling and credible information”: Mugesera at para 114. The decision maker must be satisfied that these facts as found on the “reasonable grounds to believe” standard do constitute an offence, as a question of law: Mugesera at para 116.\n\nThe relevant issue addressed by the visa officer was therefore whether there were reasonable grounds to believe Mr. Ballesteros, as a family member of Ms. Garcia, had committed an act in the Philippines that is an offence there and that, if committed in Canada, would constitute an offence punishable by a maximum term of imprisonment of at least 10 years.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-7", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 13–14", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Mr. Ballesteros and four of his companions were charged in the Philippines with “frustrated homicide.” The charge arose from an event in June 2006 in which Mr. Ballesteros’ group was involved in a fight outside a karaoke bar in Echague with two other men, Joenard Humiwat and Jacinto Balisi. The complainant, Mr. Humiwat, alleged he was hit with a beer bottle by one of Mr. Ballesteros’ friends, and was then severely beaten by Mr. Ballesteros’ group. Mr. Humiwat suffered numerous injuries including traumatic brain injury, facial injuries, and a skull fracture.\n\nThe five co-accused filed a joint affidavit in the Philippine criminal proceeding. They alleged that there had been earlier verbal altercations in the karaoke bar between the co-accused on the one hand and Mr. Humiwat and Mr. Balisi, on the other. After Mr. Ballesteros’ group left the bar, Mr. Balisi stabbed one of them without warning. In the ensuing melee, Mr. Ballesteros was also stabbed when he tried to intervene. The co-accused agreed that there was a fistfight, but asserted that they were acting in self-defence and denied any of them hit Mr. Humiwat with a bottle. This directly contradicted Mr. Humiwat’s story. Mr. Ballesteros in particular swore in the affidavit that it was physically impossible for him to have attacked Mr. Humiwat since he had already been injured from the stabbing.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-8", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 15–17", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The prosecutor in the case concluded that despite the co-accused’s assertions, these were matters of defence “best appreciated after a full-blown trial in court.” He therefore signed a resolution recommending the filing of an information. Mr. Ballesteros and the other accused filed a motion seeking reconsideration of that resolution. In an order dismissing the motion, the prosecutor found that there was “enough ground to believe that they committed the crime charged and they are probably guilty thereof and should be held for trial.” At the same time, the prosecutor noted that there were matters of credibility and that the only issue for him was whether there was sufficient evidence to establish a belief that the crime had been committed. He also concluded that the defence of self-defence was something the accused had the burden of proving and that they “must be given the chance to prove their defense before the proper court.” An Information was therefore laid in March 2007.\n\nIn March 2009, the prosecutor filed a motion to dismiss the case. The motion was based on Mr. Humiwat’s sworn “Affidavit of Desistance,” in which he asserted that: what transpired was “but a product of misapprehension of facts and misunderstanding”; the accused had no intention to kill or injure him; he was no longer interested in prosecuting the case or standing as witness; and should he be called to testify, he would “testify so as to completely exonerate [the accused] from any civil or criminal liability.”\n\nThe Information against Mr. Ballesteros and the others was dismissed by order of a judge on March 5, 2009.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-9", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 18–19", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Global Case Management System (GCMS) notes show that in December 2018, a visa officer in Manila reviewed Mr. Ballesteros’ criminal file from the Philippines. After referring to the charge laid against Mr. Ballesteros, the visa officer’s analysis proceeded as follows: Said case was dismissed on 05 March 2009 following years of hearings that culminated in the complainant executing an affidavit of desistance stating that he was no longer interested in pursuing the case. On his written explanation, Joresce states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends. Meanwhile, in his affidavit, the complainant states that one of Joresce’s companions hit him with a bottle of beer on the head which caused him to fall to the ground while the rest, Joresce included, started to beat him up. While the complainant executed an affidavit of desistance, based on the court documents on file including the medical cert of the complainant, I am satisfied that Joresce committed an act which, if committed in Canada can be equated to assault causing bodily harm as described in Section 265(1) of the Canadian Criminal Code […] [Emphasis added.]\n\nThe remainder of the visa officer’s analysis in the December 2018 entry simply reproduces portions of sections 265 and 267 of the Criminal Code, and concludes that Mr. Ballesteros is inadmissible pursuant to paragraph 36(1)(c) of the IRPA.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-10", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 20", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Following this entry, a “fairness letter” was issued to Ms. Garcia, stating that Mr. Ballesteros had been found inadmissible pursuant to paragraph 36(1)(c) of the IRPA and providing an opportunity to make submissions on the issue. Ms. Garcia responded with submissions and a statutory declaration from Mr. Ballesteros, each of which underscored his version of the events at the bar and his view that he was wrongly charged. Mr. Ballesteros also repeated that he and his companions were the first to have filed a complaint with the police against Mr. Balisi, and that the complaint against Mr. Ballesteros and his friends had been brought to respond to the complaint against Mr. Balisi. Ms. Garcia noted the dismissal of the charges and cited this Court’s decision in Arevalo Pineda for the principle that dismissal of charges is prima facie evidence that the crimes were not committed: Arevalo Pineda v Canada (Citizenship and Immigration), 2010 FC 454 at para 31.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-11", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 21", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The file was again referred to Manila. The same officer considered the file and in further GCMS notes dated July 2019 focused on the withdrawal of the charge and the Affidavit of Desistance: I had already taken note of the dismissal of the case during the initial criminality review. Nonetheless, an affidavit of desistance executed by the complainant does not necessarily mean that the act Joresce was accused of was not committed by him. Given the lengthy process of trial in the Philippines, it is common practice to settle cases outside of the court. If all parties are amenable to the terms of the settlement, the workaround is for the complainant to execute an affidavit of desistance stating that they misunderstood the facts and that they are no longer willing to pursue with the case. This is in view of having the case dismissed for reason that there will no longer be a witness to testify in court and the accused’s guilt can therefore not be established beyond reasonable doubt. Therefore, despite the dismissal, the officer must still thoroughly review the circumstances that led to the filing of the charge including the evidences that have been submitted in order to make an accurate admissibility assessment. I have considered the reply to the procedural fairness letter however the information included therein does not change my assessment on the criminality of PA-CDA’s spouse. Based on the information before me, I am still satisfied that Joresce is criminally inadmissible to Canada under A36(1)(c). [Emphasis added.]", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-12", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 22–23", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Ms. Garcia’s file was referred to Edmonton, where a visa officer relied on the Manila officer’s conclusion in reaching the determination that Ms. Garcia was inadmissible and refusing her application for permanent residence. Although the Edmonton visa officer said their decision was made based on the information before them, they conducted no independent analysis of the matter. The reasons for the refusal are therefore effectively those of the officer in Manila as set out in the two GCMS notes of December 2018 and July 2019, and the parties argued the application on this basis.\n\nThe visa officer concluded there were reasonable grounds to believe Mr. Ballesteros committed acts that if committed in Canada, would constitute the offence of assault causing bodily harm. To reasonably reach this conclusion, the visa officer had to assess whether there were reasonable grounds to believe Mr. Ballesteros committed acts that would meet the elements of the Canadian offence. It is worth noting that in Vavilov, the Supreme Court used criminality findings in the immigration context as an example of the legal constraints imposed by precedent. The Court underscored that it would “clearly not be reasonable” for an immigration tribunal considering whether an applicant’s act constitutes a criminal offence under Canadian law to adopt an interpretation inconsistent with how Canadian criminal courts have interpreted it: Vavilov at para 112. While the evidentiary standard applicable in the context of criminal inadmissibility is lower than the standard applicable in a criminal prosecution, the question of law as to what constitutes an offence remains the same: Mugesera at para 116.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-13", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 24–25", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "As stated above, the visa officer reproduced the definition of assault in subsection 265(1) of the Criminal Code and the language of subsection 267(b), which provides for a maximum ten-year sentence where an assault causes bodily harm. While the visa officer did not specifically enumerate the various elements of the offence, an administrative decision need not take the form of a jury charge or a criminal court decision: Vavilov at paras 91–92. Nonetheless, for reasons to be “justified,” it must be clear that the analysis required by the applicable statutory provision has been undertaken in some form or other: Vavilov at paras 95–96, 108.\n\nHere, the visa officer clearly considered certain elements of the offence, including the existence of bodily harm (referring to the “medical cert of the complainant”) and whether Mr. Ballesteros had been involved in the assault on Mr. Humiwat. Ms. Garcia argues, however, that the officer did not address the issues of whether Mr. Ballesteros himself caused Mr. Humiwat’s injuries and whether his actions were undertaken in self-defence.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-14", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 26", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I question whether the visa officer necessarily had to address whether Mr. Ballesteros himself caused the injuries, in light of section 21 of the Criminal Code and the principle of accessorial liability. However, I need not decide that issue since I agree it was unreasonable for the officer not to undertake any material assessment of the issue of self-defence. Subsection 34(1) of the Criminal Code outlines a defence to an offence in Canada based on the use or threat of force: Defence – use or threat of force Défense – emploi ou menace d’emploi de la force 34 (1) A person is not guilty of an offence if 34 (1) N’est pas coupable d’une infraction la personne qui, à la fois : (a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person; a) croit, pour des motifs raisonnables, que la force est employée contre elle ou une autre personne ou qu’on menace de l’employer contre elle ou une autre personne; (b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and b) commet l’acte constituant l’infraction dans le but de se défendre ou de se protéger — ou de défendre ou de protéger une autre personne — contre l’emploi ou la menace d’emploi de la force; (c) the act committed is reasonable in the circumstances. c) agit de façon raisonnable dans les circonstances", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-15", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 27–28", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Mr. Ballesteros’ evidence, both before the criminal court in the Philippines and in his statutory declaration filed with the visa officer, was that force had been used against both the friend who had been stabbed and himself, and that all physical acts he took against Mr. Humiwat were undertaken for the purpose of defending himself and his friends from Mr. Humiwat and Mr. Balisi. While Ms. Garcia’s submissions in response to the fairness letter (filed by her former counsel) could have been clearer on the subject, both those submissions and Mr. Ballesteros’ statutory declaration raised the issue of self-defence, which was central to Mr. Ballesteros’ response to the allegation that he had committed a crime.\n\nTo assess whether an act constitutes an offence in Canada it is necessary to consider not only the elements of the offence but the applicable defences: Li v Canada (Minister of Citizenship and Immigration), [1997] 1 FC 235 (CA) at para 19. While Li was decided in the context of an equivalency assessment, discussed further below, in my view the principle applies equally whether the issue is equivalency or simply whether the acts constitute an offence in Canada. The Minister did not argue otherwise. Rather, the Minister argues that the visa officer effectively considered the issue of self-defence, since the Philippine prosecutor considered the self-defence argument and decided to nonetheless dismiss the co-accused’s motion for reconsideration and lay an information.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-16", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 29", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "I cannot accept the Minister’s arguments for a number of reasons. First and foremost, there is no indication in the GCMS notes that the visa officer materially considered the issue of self-defence or relied on the dismissal of the reconsideration motion as a basis for reaching a conclusion on self-defence. The only reference in the GCMS notes to the question of self-defence is the statement in the December 2018 notes that Mr. Ballesteros “states that the physical injuries sustained by the complainant was a result of the complainant and his friend’s attack on him and his friends.” Having summarized Mr. Ballesteros’s evidence in this way, the visa officer gave no further consideration to the issue of self-defence. As the Supreme Court noted in Vavilov, a decision maker’s reasons are the primary mechanism by which they communicate the rationale for their decision and show they have listened to the parties: Vavilov at paras 81, 84, 127. Absent any reference to the question of self-defence in the visa officer’s reasons, this Court should not make assumptions about the visa officer’s reasoning on that significant issue: Vavilov at paras 96, 128.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-17", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 30–31", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Further, the visa officer is tasked with assessing whether there are reasonable grounds to believe that Mr. Ballesteros committed acts that would constitute an offence in Canada. As the Minister conceded in argument, the visa officer cannot simply delegate that decision-making to a foreign prosecutor. In any case, to the extent that the Philippine prosecutor considered that the defence of self-defence needed to go to trial, they did so in the context of Philippine law. The visa officer had to assess whether there were reasonable grounds that the acts would have constituted an offence in Canada, something the Philippine prosecutor did not address.\n\nIt is also important to note that the prosecutor’s decision on the reconsideration motion was only that there was sufficient evidence to lay charges against the co-accused. As the parties agree, evidence surrounding charges can be taken into consideration, but the charges themselves cannot be used as evidence of criminality: Sittampalam v Canada (Minister of Citizenship and Immigration), 2006 FCA 326 at para 50. While the visa officer was entitled to consider the evidence leading to the laying of charges, they could not rely on the mere decision to lay charges.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-18", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 32–34", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Finally, the evidentiary record before the visa officer was very different from the evidentiary record before the Philippine prosecutor when the reconsideration motion was dismissed. In addition to Mr. Ballesteros’ further statutory declaration, the visa officer had the Affidavit of Desistance signed by Mr. Humiwat and the dismissal of the charges in the Philippines. This evidence is addressed further below, but the fact that the reconsideration motion was decided based on a different record further undermines the Minister’s argument that the visa officer implicitly assessed the self-defence issue through reliance on the reconsideration motion.\n\nGiven the availability of the defence of self-defence, and the importance of that defence to Mr. Ballesteros’ response to the criminal allegations, it was unreasonable for the visa officer not to have meaningfully addressed it before reaching a finding on admissibility.\n\nMs. Garcia also challenges the visa officer’s treatment of the evidence, particularly the evidence about who instigated the incident and the evidence related to the withdrawal of the charges. I agree with Ms. Garcia that the visa officer’s assessment of this evidence was unreasonable.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-19", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 35–36", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "As reproduced above, the visa officer in the December 2018 GCMS notes briefly addressed the difference between Mr. Ballesteros’ and Mr. Humiwat’s evidence as to who instigated the attack. However, the visa officer’s only analysis of this evidence was that “based on the court documents on file including the medical cert of the complainant,” they were satisfied that Mr. Ballesteros had committed the act. The complainant’s medical certificate, not surprisingly, speaks only to Mr. Humiwat’s injuries, which are not in issue. In my view, it is unreasonable in the circumstances for the visa officer’s analysis of the conflicting evidence on a material issue to be limited to the broad statement that their conclusion was “based on the court documents.”\n\nThe court documents in question included medical evidence confirming that Mr. Ballesteros’ friend suffered multiple stab wounds, and that Mr. Balisi was charged (also with “frustrated homicide”) for that attack, each of which arguably corroborated Mr. Ballesteros’ evidence. It also included not only Mr. Ballesteros’ evidence but that of the other accused, which similarly corroborated the account. The visa officer did not discuss this exonerating evidence or the further evidence contained in Mr. Ballesteros’ statutory declaration, and gave no reason why they chose not to accept or rely on that evidence. Nor did the officer give any indication of why they remained satisfied in the face of this evidence that Mr. Humiwat’s initial complaint was enough to establish reasonable grounds to believe Mr. Ballesteros had committed a crime.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-20", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 37", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Rather, the only consideration the visa officer addressed in any detail was the withdrawal of charges and associated Affidavit of Desistance. In the July 2019 GCMS notes, the visa officer discounted the Affidavit of Desistance because it was “common practice [in the Philippines] to settle cases outside of the court,” with an affidavit of desistance being part of the “workaround” if the parties are amenable to terms of settlement. However, as Ms. Garcia correctly points out, there was no evidence before the visa officer of there having been any settlement or terms of settlement associated with the affidavit. To the contrary, Mr. Ballesteros’ statutory declaration stated that “the reason why Joenard withdrew the charges against us and the case was dismissed” was that he realised that they had been the ones at fault. The situation is thus very different than that in Urdas, relied on by the Minister, in which there was evidence both that the dismissal of the complaint was the result of a settlement, and of the terms of that settlement: Urdas v Canada (Citizenship and Immigration), 2019 FC 131 at paras 15, 23, 27–28. While the Minister suggests that the visa officer did not conclude that a settlement occurred in this particular case, the only reason the visa officer’s discussion of settlements would have any relevance to the evidence before them would be if they reached such a conclusion.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-21", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 38–40", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Without any further evidence or rationale, it was unreasonable for the visa officer to speculate or assume that the Affidavit of Desistance was filed as a term of settlement and to discount its contents as a result. This is particularly so where the assumption (a) directly contradicts Mr. Ballesteros’ evidence regarding the reason for the withdrawal, and (b) implies that the sworn evidence in the Affidavit of Desistance was untrue. In the Affidavit of Desistance, Mr. Humiwat stated that Mr. Ballesteros had no intention to injure him, and that his evidence would “completely exonerate” Mr. Ballesteros and the other accused from any criminal liability. The visa officer effectively concluded that this evidence was not to be accepted based on their speculation that it was filed as part of a settlement.\n\nThis is significant given that the only evidence that Mr. Ballesteros committed acts that constitute assault causing bodily harm (as opposed to acts of self-defence) came from Mr. Humiwat’s earlier statement, which he effectively withdrew through the Affidavit of Desistance. Without further analysis, it was unreasonable for the visa officer to conclude, in essence, that Mr. Ballesteros was not to be believed and that Mr. Humiwat’s earlier statement gave rise to reasonable grounds to believe that the crime was committed notwithstanding his sworn withdrawal of material aspects of that statement.\n\nIn this regard, Ms. Garcia points to the conclusion in Arevalo Pineda that the dismissal of charges is prima facie evidence the crimes were not committed: Arevalo Pineda at para 31. The Minister agrees with this principle, but argues that this presumption can be rebutted based on the evidence and facts of the case.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-22", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 41", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In this regard, I believe the approach taken in Red v Canada (Citizenship and Immigration), 2018 FC 1271, another case involving an affidavit of desistance as part of a withdrawal of charges in the Philippines, is instructive. At paragraph 28 of that decision, Justice Walker noted the following: The Affidavit of Desistance and the Order of the Trial Court are unequivocal. The elements of an offence under BPB 22 could not be established on the basis of the Applicant’s actions. The complainant, AsiaLink, swears in the Affidavit that its understanding of the facts was incorrect such that the prosecution of the case could not be successful. The Trial Court accepted the Affidavit of Desistance and withdrew the charge. I recognize that section 33 of the IRPA requires only that an officer have reasonable grounds to believe that an offence was committed by the Applicant outside of Canada. However, in light of the evidence in the record to the contrary, the Officer was required to explain in some detail the conclusion that an offence was committed. The Officer’s statement in the GCMS notes that the Applicant could not explain AsiaLink’s misunderstanding is not a sufficient explanation. [Emphasis added.]", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-23", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 42", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Minister relies on the subsequent decision in Urdas, in which Chief Justice Crampton upheld an inadmissibility finding despite the withdrawal of charges and an affidavit of desistance. Importantly, the officer’s decision in that case relied on various findings and facts, including Mr. Urdas’ own contradictory statements regarding the settlement of the charges, the fact that the complainant’s affidavit of desistance did not say Mr. Urdas did not commit the offence, and the presence of multiple witnesses in addition to the complainant: Urdas at paras 23–26. The Chief Justice distinguished Red on the basis that the affidavit of desistance in Red stated that there had been a “misaccounting and a misapprehension of facts,” whereas that in Urdas simply stated that the complainant was no longer certain the accused were the ones who stabbed them: Urdas at paras 25–26. The Chief Justice underscored that the dismissal of the charges required the officer to “exercise caution” and be satisfied that there were nonetheless reasonable grounds for the inadmissibility finding: Urdas at para 38. However, given the officer’s factual findings, it was reasonably open to them to reach such a conclusion in that case: Urdas at paras 38–39.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-24", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "para 43", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In both Red and Urdas, the issue was whether the officer had reasonably assessed the evidence, including the affidavits of desistance. In Red, the Court concluded that given the affidavit of desistance, the officer needed to provide a greater explanation of the conclusion that an offence had been committed. In Urdas the officer did provide an adequate explanation and assessment of the evidence. Both cases therefore apply the same approach, which is consistent with Arevalo Pineda, namely that the withdrawal of charges is important, but not determinative, and that a reasonable decision must explain why the evidence supports a conclusion of inadmissibility despite the dismissal of charges and any affidavit withdrawing allegations. Ultimately, the question under paragraph 36(1)(c) remains whether there are objectively reasonable grounds to believe, based on compelling and credible information, that acts were committed which constitute an offence falling within that provision: Mugesera at para 114. The withdrawal of charges associated with the acts in the foreign jurisdiction is relevant evidence suggesting an offence may not have been committed, but it is not determinative.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-25", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 44–45", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "Here, the visa officer appears to recognize that their role was to “thoroughly review the circumstances that led to the filing of the charge,” including the evidence submitted. However, despite this statement, in my assessment they did not undertake such a thorough review. As a result, neither Ms. Garcia nor the Court are able to assess why the visa officer accepted that Mr. Humiwat’s original evidence remained sufficiently credible and compelling to conclude there were reasonable grounds to believe Mr. Ballesteros had committed acts that would be an offence in Canada, despite the witness having stated that their evidence would exonerate Mr. Ballesteros, and despite Mr. Ballesteros’ direct evidence to the contrary. Without such an assessment of the evidence, the decision lacks the justification, transparency, and intelligibility of a reasonable decision: Vavilov at paras 86, 99, 133.\n\nMs. Garcia also argues that the visa officer’s decision was unreasonable because it failed to conduct an “equivalency” analysis between the Philippine and Canadian offences in accordance with the Federal Court of Appeal’s decision in Hill v Canada (Minister of Employment and Immigration), [1987] FCJ No 47, 1 Imm LR (2d) 1 (CA). While I need not determine this argument given my conclusions above, I believe it worth discussion in light of the parties’ arguments on the issue.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-26", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 46–47", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In Hill, the Federal Court of Appeal set out three ways in which an officer may conduct an “equivalency” analysis to determine whether a foreign offence “would constitute an offence” in Canada: (i) by comparing the precise wording in each statute to determine the essential ingredients of the respective offences; (ii) by examining the evidence adduced before the adjudicator to ascertain whether the evidence was sufficient to establish that the essential ingredients of the offence in Canada had been proven in the foreign proceedings; or (iii) a combination of (i) and (ii).\n\nIn the present case, the visa officer did not undertake a comparison between the essential elements of the “frustrated homicide” offence with which Mr. Ballesteros was charged in the Philippines and the assault causing bodily harm offence in Canada. Ms. Garcia argues that an officer must at least describe the constituent elements of the Canadian and foreign offences, with reference to applicable provisions: Nshogoza v Canada (Citizenship and Immigration), 2015 FC 1211 at paras 27–31. Relying on Justice Diner’s decision in Liberal, she argues that mere reference to the provisions followed by a brief statement regarding their equivalence is not a reasonable analysis: Liberal v Canada (Citizenship and Immigration), 2017 FC 173 at paras 28–32.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-27", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 48–50", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "In my view, it is relevant to note that Hill, Nshogoza and Liberal, as well as the cases they rely on, were decided in the context of paragraph 36(1)(b) of the IRPA or its predecessor, as the applicant in each case had been convicted of a foreign offence: Nshogoza at para 1; Liberal at para 1; see also Li at paras 2–3; Brannson v Canada (Minister of Employment and Immigration), [1981] 2 FC 141 (CA) at pp 142–143; Kathirgamathamby v Canada (Citizenship and Immigration), 2013 FC 811 at paras 1, 24.\n\nAs set out above, paragraph 36(1)(b) is triggered where a party has been convicted of an offence outside Canada that, if committed here, would be an offence punishable by a maximum term of imprisonment of at least 10 years. This requires an assessment of whether the offence of which the individual was convicted outside Canada would also constitute an offence in Canada. This engages the equivalency question addressed in Hill.\n\nThe analysis under paragraph 36(1)(c) of the IRPA, however, pertains not to a conviction outside Canada or even a charge, but to an act committed by the individual. The paragraph has two requirements. First, the act must be “an offence” where it was committed. Second, the act must constitute an offence punishable by a maximum term of imprisonment of at least 10 years, if it were committed in Canada. Unlike paragraph 36(1)(b), the paragraph does not on its face require that there be any equivalence between the offences in the two jurisdictions; simply that the act be “an offence” where it was committed, and constitute “an offence” with a particular punishment in Canada.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-28", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 51–52", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "This difference has led this Court to question the applicability of the equivalency analysis to paragraph 36(1)(c): Victor v Canada (Public Safety and Emergency Preparedness), 2013 FC 979 at paras 35–37; Nguesso v Canada (Citizenship and Immigration), 2015 FC 879 at paras 208–210. Nonetheless, this Court has also held in a number of cases that paragraph 36(1)(c) does trigger the Hill equivalency analysis: Pardhan v Canada (Citizenship and Immigration), 2007 FC 756 at paras 9–10; Somal v Canada (Citizenship and Immigration), 2014 FC 891 at para 19; Singh v Canada (Citizenship and Immigration), 2019 FC 946 at paras 16–17; Cruz v Canada (Citizenship and Immigration), 2020 FC 455 at paras 42–43.\n\nIn my view, the reasoning in Victor and Nguesso regarding the applicability of the Hill equivalency analysis to paragraph 36(1)(c) is persuasive. In any event, as Justice Roy noted in Victor, Hill sets out three alternative methods that may be used in the analysis, and to the extent that the Hill analysis may be necessary under paragraph 36(1)(c), the second Hill method seems “particularly advisable”: Victor at para 45. To this, I would add the observation that if applying the second Hill method in the context of paragraph 36(1)(c), the evidence in question may not have been “adduced before the adjudicator” or “proven in the foreign proceedings,” since no conviction is necessary under the section.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-29", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 53–55", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The Minister argues that the visa officer did undertake an adequate examination of whether the essential elements of the Canadian offence had been established on the evidence, and thereby followed the second Hill method. While I have concluded above that the visa officer’s analysis of the evidence and the elements was not reasonable, I cannot conclude that the decision was also unreasonable because it failed to adequately assess equivalency between the Philippine offence for which Mr. Ballesteros was charged and the Canadian offence of assault causing bodily harm.\n\nMs. Garcia argues that in addition to being unreasonable, it was unfair for the visa officer to rely on the “common practice to settle cases outside of the court” as a reason to discount the Affidavit of Desistance. She argues the visa officer apparently relied on extrinsic sources regarding the workings of the criminal system in the Philippines without putting that information or those issues to Ms. Garcia to allow her to respond with submissions or evidence. The Minister argues that Ms. Garcia was given the opportunity to address the overall criminality finding through the issuance of the procedural fairness letter, and that the visa officer is entitled to rely on specialized localized information regarding the country in which they work: Habte v Canada (Citizenship and Immigration), 2019 FC 327 at paras 23, 32, 35.\n\nWhile the duty of procedural fairness owed by visa officers generally tends to be at the lower end of the spectrum, this Court has recognized that decisions that involve inadmissibility invoke a greater degree of procedural fairness: Nguesso at paras 65–66. In my view, the officer did not meet the duty of fairness in this case.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-30", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 56–57", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "While a visa officer’s expertise and knowledge is central to their decision making, this does not resolve the issue of whether a visa officer has an obligation in a particular case to raise an aspect of that specialized knowledge before rendering a decision based on it. This Court has recognized that the rules of procedural fairness require that in some instances, such information or evidence must be disclosed: Al Hasan v Canada (Citizenship and Immigration), 2019 FC 1155 at paras 10–11; Nguyen v Canada (Citizenship and Immigration), 2019 FC 439 at para 28. The issue is whether “meaningful facts essential or potentially crucial to the decision” were relied upon without the applicant having been given an opportunity to comment on them: Nguyen at para 28, quoting Yang v Canada (Minister of Citizenship and Immigration), 2013 FC 20 at para 17.\n\nIn the present case, it is clear that the role of settlement and affidavits of desistance in the Philippine criminal justice system was a matter “essential or potentially crucial” to the visa officer’s decision. Indeed, it was the material focus of their analysis of Mr. Ballesteros’ admissibility. Yet neither the visa officer’s understanding that “it is common practice to settle cases” because of the lengthy trial process, nor their understanding that affidavits of desistance are simply a “workaround” arising from the terms of settlement was put to Ms. Garcia for comment in the fairness letter. In my view, it was unfair for the officer to rely on this information in this context, particularly where there was no evidence of a settlement, and where the visa officer’s understanding or information directly contradicted Mr. Ballesteros’ evidence that the withdrawal arose from Mr. Humiwat’s realization that he was at fault.", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-492842-31", + "doc_type": "caselaw", + "act_code": "2021 FC 141", + "act_short": "Garcia", + "act_name": "Garcia v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Garcia v. Canada (Citizenship and Immigration), 2021 FC 141", + "marginal_note": "paras 58–59", + "heading": "Criminal inadmissibility; the effect of withdrawn charges and a claim of self-defence", + "part": "Federal Court", + "division": "", + "text": "The application for judicial review is therefore allowed, and Ms. Garcia’s application is referred back to a different officer for redetermination.\n\nNeither party proposed a question for certification. I agree that none arises. JUDGMENT IN IMM-5235-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The visa officer’s decision is set aside and Ms. Garcia’s application for permanent residence is returned for re-determination by a different officer. “Nicholas McHaffie” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5235-19 STYLE OF CAUSE: LOREBETH GARCIA v THE MINISTER OF CITIZENSHIP AND IMMIGRATION HEARING HELD BY VIDEOCONFERENCE ON SEPTEMBER 9, 2020 FROM OTTAWA, ONTARIO (COURT) AND CALGARY, ALBERTA (PARTIES) JUDGMENT AND REASONS: MCHAFFIE J. DATED: February 11, 2021 APPEARANCES: Sania Chaudhry For The Applicant Meenu Ahluwalia For The Respondent SOLICITORS OF RECORD: Stewart Sharma Harsanyi Barristers and Solicitors Calgary, Alberta For The ApplicantS Attorney General of Canada Calgary, Alberta For The Respondent", + "current_to": "2021-02-11", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/492842/index.do" + }, + { + "id": "fc-483303-1", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 1–4", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant is a citizen and resident of India. In or around late May 2019, she applied to the Migration Section of the Consulate General of Canada in Chandigarh, India, for a Temporary Resident Visa [TRV] so that she could visit her daughter in Canada. In a decision dated August 16, 2019, a visa officer refused the application because the applicant had not established that she would leave Canada at the end of her authorized stay and because she had misrepresented information in her TRV application. As a result of the finding of misrepresentation, the applicant is inadmissible to Canada for five years under paragraph 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].\n\nThe applicant has applied for judicial review of this decision on the basis that it was made in breach of the requirements of procedural fairness.\n\nThe applicant originally asked that the officer’s decision be set aside and that the matter be remitted to another decision maker for a redetermination of the TRV application. However, the timeframe for the applicant’s proposed trip to Canada is long passed. At the hearing of this application, the applicant’s counsel acknowledged that the main concern was the misrepresentation determination and the five-year period of inadmissibility it entails.\n\nFor the reasons that follow, I agree with the applicant that the decision was made in breach of the requirements of procedural fairness. This application will therefore be allowed and the August 16, 2019, decision (including the finding of misrepresentation) will be set aside. No other relief is requested or necessary.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-2", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 5–8", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant applied in or around late May 2019 for a TRV to permit her to visit her daughter in Canada between June 15 and 30, 2019. The applicant’s daughter is a permanent resident of Canada who lives in Saint-Laurent, Quebec. The applicant’s mother (who is also a citizen of India) wished to make the trip as well and was included on the TRV application.\n\nOn June 28, 2019, the Migration Section of the Canadian Consulate in Chandigarh sent an email to the applicant’s daughter’s email address. (That address had been given as the applicant’s contact email on the TRV application.) The subject line of the email indicated “PFL for Swaranjit Kaur.” (“PFL” is a commonly used acronym for “Procedural Fairness Letter.”) The body of the email stated: “An important communication (attached) regarding your application is being sent to you.”\n\nThe Certified Tribunal Record [CTR] prepared for this application for judicial review by the Consulate General of Canada in Chandigarh does not include a copy of a procedural fairness letter dated on or around June 28, 2019, nor does it include any notes from the Global Case Management System [GCMS] pertaining to any such letter. The GCMS notes simply indicate that on June 28, 2019, a procedural fairness letter was sent to the applicant’s daughter’s email address.\n\nAt some point (the date is not provided in the record on this application), the applicant’s daughter sent a communication to Immigration, Refugees and Citizenship Canada [IRCC] stating that she had received the June 28, 2019, email from the Migration Section but there was no attachment. It appears that this message to IRCC reached the Canadian Consulate in Chandigarh on July 25, 2019.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-3", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 9–14", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The GCMS notes indicate that the procedural fairness letter was “resent” on July 25, 2019. A letter of that date is included in the record.\n\nIn this letter, an unidentified officer notes that under subsection 16(1) of the IRPA, a person who makes an application “must answer truthfully all questions put to them for the purpose of the examination and must produce a visa and all relevant evidence and documents that the officer reasonably requires.” The officer then states that they were concerned with the authenticity of the following, which you have provided in support of your application: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nThis “information” concerning the applicant’s alleged unlawful presence in the United States is not otherwise described in the letter. There is nothing in the CTR to indicate what gave rise to this allegation.\n\nThe officer invited the applicant to respond to the information set out in the July 25, 2019, letter. If no response was received by the deadline specified in the letter (August 9, 2019), the application for a TRV would be refused.\n\nThe officer also noted that if it is found that the applicant “engaged in misrepresentation” in submitting her TRV application, she may be found inadmissible under paragraph 40(1)(a) of the IRPA. Such a finding would render her inadmissible to Canada for a period of five years.\n\nWith her daughter’s assistance, the applicant retained a Canadian lawyer in Montreal (not Mr. Chalk) to represent her in providing a response to the July 25, 2019, letter.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-4", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 15–18", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "On August 5, 2019, the lawyer emailed the Migration Section explaining that she had only recently been retained and was requesting an extension of time to respond to the July 25, 2019, letter.\n\nOn August 6, 2019, an officer with the Migration Section replied by email and granted an extension of seven days (i.e. to August 13, 2019) to provide a response. The officer also set out the following bullet points in the email, presumably to explain why only a relatively short extension was being granted: ● The applicant has been provided with ample time to respond to our concerns. ● The applicant provided an email address which we used [. . .] so there is no reason the applicant would not have been aware of our concerns and been able to respond in a timely manner. We resent the letter on 25th July giving 10 days to respond. ● The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nAlthough the officer does not say so expressly, there is no issue that the specific question to which the officer is referring in the last bullet point is Question 2(b) under Background Information in the Application for Visitor Visa (Temporary Resident Visa) form. It asks: “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?” As the officer notes, the applicant answered “No” to this question on her original TRV application.\n\nOn August 12, 2019, the applicant’s lawyer emailed a letter and supporting documents to the Canadian Consulate.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-5", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 19–23", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In response to the specific allegation in the July 25, 2019, letter concerning the applicant not disclosing having been unlawfully present in the United States, the applicant’s lawyer wrote that she “can confirm that [the applicant] neither visited nor overstayed at [sic] the USA in the last 10 years.”\n\nHowever, the applicant’s lawyer then went on to state that there were three “mistakes” in the TRV application. These mistakes were made because an “unauthorized” representative in India had prepared the TRV application for the applicant, the applicant had answered truthfully all the questions the representative asked her, but the representative had not translated some of the questions on the application properly.\n\nThe applicant’s lawyer described the mistakes in the TRV application as follows.\n\nFirst, in response to the question “Have you previously been married or in a common law relationship?”, the applicant had answered “Yes” and provided the name of her late husband, who had passed away in 2008. The lawyer wrote that the correct answer is “No” because the applicant had only been married once, to her late husband. (In response to the immediately preceding question asking her current marital status, the applicant had stated “widowed”.)\n\nSecond, in response to the question “Are you able to communicate in English and/or French?”, the applicant had answered “English” when the correct answer is “No”. (The applicant had stated in her application that her mother tongue is Punjabi.)", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-6", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "para 24", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Third, in response to the question “Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory?”, the applicant had answered “No” when the correct answer is “Yes”. The lawyer explained this mistake as follows (sic throughout): Although Madame Swaranjit Kaur was never denied entry or ordered to leave Canada or any other country, but she was denied a visa to the USA on 2018 because when she was visiting the USA between 2006 and 2008, she has lost her Indian passport and then left the USA without her lost Indian passport, which caused her a delay over 6 month in USA for her to be able to arrange for an alternative (lesser passer) Indian travel document (Indian Landing paper) to allow her to board a plane to go back to India on June 2008. [Here the lawyer makes reference to an attached document. From the list of attachments provided with the letter, it would appear to be a “report of lost passport.” For some reason, this document was not included in the record on this application for judicial review.] The reason why this question was answered no, because the unauthorized representative told her that the question is only asking about Canada: “if been refused a visa or permit, denied entry or ordered to leave Canada” in the last 10 years, without translating “or any other country or territory.” Yet she told him that she was refused a visitor visa to the USA on 2018, but he told her that the question is only about Canada.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-7", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 25–27", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The applicant’s lawyer went on to submit that the applicant had not knowingly provided false information in her application. Rather, she had made innocent mistakes. The lawyer attributed the mistakes in the application to the failure of the representative to translate the questions on the application properly, to the applicant’s inability to read and understand the application form that had been completed in English, to the applicant’s age (she was born in 1959), to the applicant’s health (she suffered from a specified medical condition that caused pain and fatigue), and to the passage of more than 11 years “since the event.” (It is not entirely clear what event the lawyer is referring to but it appears to be the applicant’s departure from the United States in June 2008.)\n\nAs set out in the decision letter dated August 16, 2019, the TRV application was refused for two reasons.\n\nFirst, the officer was not satisfied that the applicant would leave Canada at the end of her stay as a temporary resident, as required by paragraph 179(b) of the Immigration and Refugee Protection Regulations, SOR/2002-227. This finding was based on: the applicant’s family ties in Canada and in India; the purpose of the applicant’s visit to Canada; and the applicant’s personal assets and financial status.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-8", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 28–31", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Second, the officer was not satisfied that the applicant had answered all the questions in her TRV application truthfully, as required by subsection 16(1) of the IRPA. The officer wrote: Specifically, I am not satisfied that the following information is truthful: You misrepresented previous US refusals which could have induced an error in [the] administration of the Act in that you may have been issued a TRV. Application is clear in that it asks “have you EVER been refused…any country” [emphasis in original].\n\nThe decision letter does not mention the applicant’s alleged omission of her having been unlawfully present in the United States, as set out in the July 25, 2019, procedural fairness letter.\n\nThe officer concludes the decision letter by stating that the applicant had been found inadmissible to Canada in accordance with paragraph 40(1)(a) of the IRPA for, directly or indirectly, misrepresenting or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of the IRPA. In accordance with paragraph 40(2)(a) of the IRPA, the applicant will remain inadmissible for a period of five years from the date of the letter.\n\nThe officer’s GCMS notes shed some additional light on the basis of the officer’s misrepresentation finding.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-9", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 32–34", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the officer’s view, the TRV application “is clear in what is being asked, applicant has signed it that all is truthful and correct, applicant not only did not disclose US visa refusals and the problems in the US in 2008 – but she also did not disclose [her medical condition]. Having had so much trouble in the US previously it is reasonable that the applicant would either make sure all is done correctly to avoid further problems – OR – purposefully not disclose refusals that might affect this application” [original emphasis]. Further, the applicant is responsible for the consequences of having chosen to be assisted by an unauthorized representative.\n\nThe officer was not persuaded by the explanations offered by the applicant’s lawyer for why incorrect information had been included on the TRV application. The officer did not accept that the applicant did not know what she was signing or fully understand the application. The officer therefore found that the applicant is inadmissible to Canada under paragraph 40(1)(a) of the IRPA due to misrepresentation regarding the US visa refusals and rejected the application accordingly.\n\nNotably, while the officer alludes to the applicant’s “problems” in the United States in 2008 (i.e. the delay in leaving because of the loss of her Indian passport), there is no specific finding in the GCMS notes in relation to the concern that had been expressed in the July 25, 2019, letter – namely, that the applicant had been unlawfully present in the United States for 365 days or more within 10 years and that she had failed to disclose this.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-10", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 35–36", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "There is no dispute in the present case about how a reviewing court should determine whether there has been a breach of the requirements of procedural fairness. The court must conduct its own analysis and provide what it judges to be the right answer to the question of whether the process the decision maker followed satisfied the level of fairness required in all of the circumstances. This is functionally the same as applying the correctness standard of review: see Dunsmuir v New Brunswick, 2008 SCC 9 at paras 34 and 50; Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 at para 54; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43; Canadian Pacific Railway Co v Canada (Attorney General), 2018 FCA 69 at paras 33-56; and Elson v Canada (Attorney General), 2019 FCA 27 at para 31.\n\nIn Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817, the Supreme Court of Canada held (at para 22) that “the purpose of the participatory rights contained within the duty of procedural fairness is to ensure that administrative decisions are made using a fair and open procedure, appropriate to the decision being made and its statutory, institutional, and social context, with an opportunity for those affected by the decision to put forward their views and evidence fully and have them considered by the decision-maker.” Further, the values underlying the duty of fairness “relate to the principle that the individual or individuals affected should have the opportunity to present their case fully and fairly, and have decisions affecting their rights, interests, or privileges made using a fair, impartial, and open process, appropriate to the statutory, institutional, and social context of the decision” (at para 28).", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-11", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 37–38", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The common law duty of procedural fairness is “flexible and variable” (Baker at para 22). Several factors must be considered in determining what is required in the specific context of a given case, including: (1) the nature of the decision being made; (2) the nature of the statutory scheme under which the decision is made; (3) the importance of the decision to the individual(s) affected; (4) the legitimate expectations of the party challenging the decision; and (5) the procedures followed by the decision maker itself and its institutional constraints (Baker at paras 21-28).\n\nApplying these considerations, courts have consistently found that in visa applications the requirements of procedural fairness fall on the low end of the spectrum (Sepehri v Canada (Citizenship and Immigration), 2007 FC 1217 at para 3; Asl v Canada (Citizenship and Immigration), 2016 FC 1006 at para 23). While an applicant must be afforded a fair process by the visa officer, what is required for the process to be fair is attenuated by the fact that generally what is at issue is whether the applicant will be permitted to visit, study in, or move to Canada – privileges accorded to foreign nationals by the IRPA and related regulations in specified circumstances.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-12", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "para 39", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "Even so, procedural fairness requires that an applicant for a visa have an opportunity to participate meaningfully in the application process. Consequently, the duty of procedural fairness can require that an applicant be given an opportunity to respond to a decision maker’s concerns when those concerns go beyond simply whether the legislation or related requirements are met on the face of the application (Hassani v Canada (Minister of Citizenship and Immigration), 2006 FC 1283 at para 24). When, for example, the applicant may be unaware of the existence or the basis of the concern, procedural fairness may require prior notice of the concern before a decision is made so that the applicant has an opportunity to try to disabuse the officer of the concern. See Talpur v Canada (Citizenship and Immigration), 2012 FC 25 at para 21; Mohammed v Canada (Immigration, Refugees and Citizenship), 2019 FC 326 at paras 25-26; and Bui v Canada (Citizenship and Immigration), 2019 FC 440 at para 27. While these cases all concerned applications for permanent resident visas, in my view the principles they stand for are equally applicable to applications for temporary resident visas (cf. Kong v Canada (Citizenship and Immigration), 2017 FC 1183 at paras 22-27). Where the concern relates to misrepresentation, the importance of having a meaningful opportunity to meet it is even more evident given the potential consequences of a finding of misrepresentation: see Toki v Canada (Immigration, Refugees and Citizenship), 2017 FC 606 at para 17, and Ntaisi v Canada (Citizenship and Immigration), 2018 CanLII 73079 (FC) at para 10.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-13", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 40–42", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the present case, the applicant advances two principal arguments. First, the procedural fairness communications she received – the July 25, 2019, letter and the August 6, 2019, email – were insufficient because they did not inform her of the officer’s specific concerns. Second, since the applicant’s response to these communications evidently raised additional concerns for the officer, the officer was required to put these new concerns to the applicant in another procedural fairness letter before making a decision.\n\nI agree with the applicant’s first argument. Since this is sufficient to dispose of this application, it is not necessary to address her second argument.\n\nIt follows from the principles cited above that, when a procedural fairness letter has been sent, a functional approach should be taken to assessing its adequacy. The purpose of a procedural fairness letter “is to provide enough information to an applicant that a meaningful answer can be supplied” (Ntaisi at para 6). Thus, the question is: Does the letter inform the affected party of the decision maker’s concerns? To serve this purpose, the letter must state more than general concerns. It must state the decision maker’s concerns with sufficient clarity and particularity so that the affected party has a meaningful opportunity to address them. See AB v Canada (Citizenship and Immigration), 2013 FC 134 at paras 53-54, and Toki at para 25.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-14", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 43–44", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The July 25, 2019, letter states that the officer who wrote it had a concern with respect to the “authenticity” of certain information the applicant had provided in connection with her TRV application, specifically: On the current application form, you have not declared being unlawfully present for 365 days or more within 10 years in the United States. According to information in our records, you were unlawfully present for 365 days or more within 10 years in the United States.\n\nWhatever the concern was that had given rise to the July 25, 2019, letter, it is expressed confusingly at best. It is not at all clear why it is a concern about “authenticity”, what exactly the applicant should have declared, or where she should have done so on the TRV application. Further, the letter is ambiguous. Is it referring to the ten year period prior to the TRV application (as the applicant and her lawyer evidently thought) or some other ten year period? If it is the latter, which ten year period? According to the applicant, the events relating to the loss of her Indian passport while she was visiting the United States occurred more than ten years earlier and so the allegation in the July 25, 2019, letter (as she understood it) was mistaken. There is no way to tell whether the July 25, 2019, letter is referring to these events or to something else.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-15", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 45–48", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "While these are all serious problems, it is not necessary to come to a final determination about the adequacy of the July 25, 2019, letter. This is because, as I read the decision letter and the officer’s GCMS notes, this alleged non-disclosure does not figure much, if at all, in the final decision. As noted above, the officer who made the decision does not make any findings one way or the other about whatever it was that that letter was referring to. Rather, the principal concern was that the applicant had been refused a US visa twice in 2010 and she had not disclosed this in response to Question 2(b).\n\nTo repeat for ease of reference, the August 6, 2019, email expressed the following concern: The facts are clear regarding what was not disclosed on the original application – the applicant was asked in the application ‘Have you ever been refused a visa or permit, denied entry or ordered to leave Canada or any other country or territory’ – to which the applicant indicated NO – which was not true.\n\nBoth on its face and in light of the final decision, this email appears to be expressing a different concern than the one expressed in the July 25, 2019, letter. Whether the requirements of procedural fairness were met or not thus turns on whether the email informed the applicant of the concerns of the officer who ultimately decided to reject the TRV application and to find the applicant inadmissible due to misrepresentation.\n\nBy way of further context, it appears from the GCMS notes that the officer who made the decision at issue sent the August 6, 2019, email but a different officer had prepared the July 25, 2019, letter.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-16", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 49–52", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "The respondent argues that it was sufficient for the officer simply to alert the applicant that there was a concern that her answer to Question 2(b) on the application form was false. Since the applicant knows her own travel history, she would know what the officer was referring to in the email. Whatever might have given rise to the original procedural fairness letter, it is clear from the decision that the officer’s concern was with respect to the applicant’s failure to disclose previous US visa refusals. Since the applicant would have known about those refusals, there was no breach of procedural fairness despite the fact that the officer did not refer to them specifically in the email.\n\nI do not agree.\n\nEven assuming perfect recollection of her travel history on the part of the applicant, the respondent’s argument presumes that the information the officer was relying on is accurate. However, this may be the very point in issue when a concern about misrepresentation arises. One cannot be faulted for failing to disclose something that is not, in fact, the case.\n\nThe officer who made the final decision evidently believed that the applicant had been refused a US visa twice in 2010. The grounds for that belief do not appear in the record. There is nothing before me to suggest that the officer could not have disclosed this specific concern to the applicant in the August 6, 2019, email and invited a response. Because the officer did not do so, the officer and the applicant ended up at cross-purposes.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-17", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 53–55", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "In the response prepared by her lawyer, the applicant disclosed that she had been refused a US visa in 2018 and offered an explanation for why it was not mentioned in her TRV application: the applicant had told her representative about it but he said the question only concerned Canadian visa refusals. There is no indication in the record that the officer was even aware of this refusal before the applicant disclosed it in her procedural fairness response. Moreover, it is not clear how, if at all, this particular omission from the TRV application figures in the officer’s misrepresentation determination. While the applicant acknowledged having been refused a US visa once (in 2018), this alone cannot be the basis of the misrepresentation finding. This is because, in the decision letter and the GCMS notes, the officer consistently refers to visa refusals – that is, to more than one – when describing the applicant’s misrepresentation.\n\nOn the other hand, it is clear that the two alleged 2010 visa refusals figure significantly in the decision. The officer mentions them specifically in the decision letter and in the GCMS notes. However, the applicant did not have a meaningful opportunity to address this allegation because she was never advised that this is what had given rise to the officer’s concern about misrepresentation in the first place.\n\nIn sum, I am not satisfied that the August 6, 2019, email communicated the officer’s concern about misrepresentation with sufficient clarity and particularity to provide the applicant with a meaningful opportunity to respond. Consequently, the decision on the TRV application was made in breach of the requirements of procedural fairness.", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-483303-18", + "doc_type": "caselaw", + "act_code": "2020 FC 809", + "act_short": "Kaur", + "act_name": "Kaur v. Canada (Citizenship and Immigration)", + "section": "", + "citation": "Kaur v. Canada (Citizenship and Immigration), 2020 FC 809", + "marginal_note": "paras 56–57", + "heading": "Procedural fairness; the right to a meaningful opportunity to answer a visa officer's concerns", + "part": "Federal Court", + "division": "", + "text": "For these reasons, the application for judicial review will be allowed. As noted above, the applicant does not seek reconsideration of her TRV application. She is content to have the decision dated August 16, 2019, (including the finding of misrepresentation) set aside. I will so order.\n\nThe parties have not suggested any serious questions of general importance for certification under paragraph 74(d) of the IRPA. I agree that none arise. JUDGMENT IN IMM-5627-19 THIS COURT’S JUDGMENT is that The application for judicial review is allowed. The decision dated August 16, 2019, is set aside. No question of general importance is stated. “John Norris” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5627-19 STYLE OF CAUSE: SWARANJIT KAUR v THE MINISTER OF CITIZENSHIP AND IMMIGRATION CANADA HEARING HELD BY VIDEOCONFERENCE ON JULY 7, 2020 FROM OTTAWA, ONTARIO (COURT) AND MONTREAL, QUEBEC (PARTIES) JUDGMENT AND REASONS: NORRIS J. DATED: August 4, 2020 APPEARANCES: David Chalk For The Applicant Jocelyne Murphy For The Respondent SOLICITORS OF RECORD: Chalk Immigration Montreal, Quebec For The Applicant Attorney General of Canada Montreal, Quebec For The Respondent", + "current_to": "2020-08-04", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/483303/index.do" + }, + { + "id": "fc-56900-1", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 1", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "The Applicant, Ms. Thi Ngoc Nguyen, seeks to challenge a decision taken under section 133 of the Customs Act, R.S.C. 1985, c. 1 (2nd Supp.) (“the Act”), whereby the Minister of Public Safety and Emergency Preparedness (“the Minister”) requires payment of a specified amount of money before returning a seized diamond ring. The Applicant’s arguments are all directed at challenging the decision under section 131 of the Act whereby the Minister found that Ms. Nguyen had contravened s. 12 of the Act by failing to report an alleged importation of a ring. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s.135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s.131 of the Act be appealed by way of an action. In other words, a decision made pursuant s. 131 of the Act must be challenged by way of action and not by way of application for judicial review.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-2", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 2–3", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "As Justice Andrew MacKay stated in ACL Canada Inc. v. Canada (Minister of National Revenue - M.N.R.), (1993) 68 F.T.R. 180, 107 D.L.R. (4th) 736 (F.C.T.D.): [54] In my view, Parliament has insulated from appeal the penalty imposed in the event there is found to be a contravention of the Act. That may seem surprising since the penalty will often be the primary concern of the person whose goods are seized under the Act or who is served with a notice and demand for payment under s.124. Yet that simply carries on a long-standing regime under Customs Acts of the past, at least in relation to goods seized, for the goods are forfeited to Her Majesty at the time of the contravention of the Act (s. 122), and terms of any remission, where the Act or regulations are contravened, have been considered beyond the role of the Court to review. (Lawson et al. v. The Queen, [1980] 1 F.C. 767 F.C.T.D. (per Mahoney J. at 772)). [Underlined by the court]\n\nA technical provision with a privative clause presents a conundrum to judicial review, when it does not result in a conclusion that would be reached due to factual evidence! In such an instance, the law is followed although justice may be undone. In the case at bar, this has occurred due to a series of circumstances which include language barrier challenges for an applicant, misinterpretation of significant evidence by first instance decision-makers and jurisprudence pointing at the frustration of judges for a period of years (Dokaj v. Canada (Minister of National Revenue - M.N.R.), 2005 FC 1437, [2006] 2 F.C.R. 152; ACL Canada, above, at para. 56, see also below at paragraph 22 of this Decision).", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-3", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 4–5", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "An iron-clad privative clause can only be interpreted as it is and nothing more, if a court recognizes it is but a court, and nothing more; nevertheless, the subject-matter can then be reviewed by the executive branch for eventual formulation by the legislative branch so that justice can prevail, where in rare exceptions, cases of honest citizens and residents of Canada fall through the cracks. Such is the situation in this case, wherein, the court understands its limitations under the separation of powers and the legislation is clear on given points under which a decision would be overturned, if it ruled differently. The court acknowledges even if it were inclined to rule otherwise, that under constitutional supremacy, it is not for the court, itself, to write the law but rather it is for the two other branches of government to remedy the situation if they so see fit.\n\nThe fact a dialogue can ensue among the three branches of government through jurisprudence, represents, in and of itself, the measure of health in a democracy. The spirit of the law attempts to be at one with justice, as a synchronized whole, where the three branches of government, although working separately, set matters right under the supremacy of that constitutional framework, each within its own jurisdiction. II. JUDICIAL PROCEDURE", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-4", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 6–9", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "This is an application for judicial review of a Ministerial decision dated August 7, 2008 (“the Decision”), which made two determinations. First, pursuant to s. 131 of the Act, the Minister found that Ms. Nguyen had contravened s. 12 of the Act. Having found a contravention of the Act, the Minister then determined pursuant to s. 133 of the Act that a ring under seizure would be returned to Mr. Nguyen upon receipt of the amount of $30,483.20, to be held as forfeit. III. BACKGROUND\n\nMs. Nguyen is a Canadian citizen who is originally from Vietnam, but who resided in Surrey, British Columbia at the time of the enforcement action. She was a mushroom farm worker but currently works as a manicurist.\n\nOn February 15, 2007, Ms. Nguyen left Canada for a visit to Vietnam. She took with her various clothing and jewellery, including a diamond ring (“the ring”), two other diamond rings (“the engagement and wedding rings”), and two pairs of earrings with clear stones (“the earrings”).\n\nAbout two weeks later, on March 2, 2007, Ms. Nguyen returned to Canada, bringing back all the jewellery which she had taken with her. In response to a question on her customs declaration form as to whether she was bringing into Canada items purchased or received abroad, she stated that she had nothing to declare. At the preliminary inspection point, she was referred to secondary inspection because of her difficulty communicating in English. A customs officer at the secondary inspection point opened Ms. Nguyen’s luggage. This second customs officer unfolded a light jacket/shirt and felt a small lump in its pocket. When the customs officer opened the pocket, she discovered Ms. Nguyen’s jewellery in a small jewellers’ plastic bag.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-5", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 10–12", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Ms. Nguyen provided an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005. Finally, the diamond grading report was with respect to the diamond in the ring and was dated September 15, 2003 in Antwerp, Belgium.\n\nThe customs officer told Ms. Nguyen that the documents do not establish that the ring had been legally imported into Canada or that applicable duties and taxes had been paid.\n\nMs. Nguyen was unable to provide receipts for the purchase of any of her jewellery because the jewellery consisted of gifts from people with whom she was no longer in contact. She indicated to the customs officer that the engagement and wedding rings were given to her by her ex-husband while they both lived in Montreal. In her affidavit, she claims that her ex-husband gave her the gifts of earrings in 1994, and in 1997 he gave Ms. Nguyen the wedding and engagement rings. This jewellery is now over 10 years old. Ms. Nguyen was separated from her ex-husband in 1998 and they are not on speaking terms.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-6", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 13–16", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "She indicated to the customs officer that the ring was given to her in Vancouver as a gift from her boyfriend (Certified Record at pp. 2, 4-5). When asked what her boyfriend does for a living, she indicated that he owns a business in Hong Kong where he now lives (Certified Record at p. 4). In her affidavit, Ms. Nguyen confirmed that she was given the ring on Valentine’s Day in 2005 by her boyfriend in Vancouver. According to Ms. Nguyen, she was separated from her boyfriend by the end of 2006 and they are no longer in contact.\n\nNot satisfied, the customs officers seized the ring because Ms. Nguyen had not declared it on the customs forms as she allegedly was required to do. She also did not have receipts confirming when the jewellery was bought. The other jewellery was also kept in custody but was not seized; the customs officer believed that the other items may have been more than 10 years old; and, therefore, beyond the limitations period.\n\nAt the request of the Minister, GLS Gemlab Limited conducted an appraisal of the ring. Based on this appraisal, the Minister informed Ms. Nguyen by letter dated April 4, 2007, that the ring would be released upon payment of $30,483.20 in duties and an additional $5,681.31 in Provincial Sales Tax.\n\nMs. Nguyen duly requested the Minister to review the enforcement action. By letter dated June 22, 2007, Ms. Nguyen was informed that the Minister was reviewing the enforcement action which had been taken as Ms. Nguyen had not reported the alleged importation of the ring in contravention of s. 12 of the Act. IV. THE IMPUGNED DECISION", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-7", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Upon review of the enforcement action, the Minister’s delegate issued two determinations on August 7, 2007, as follows: After considering all of the circumstances, I have decided, under the provisions of section 131 of the Customs Act, that there has been a contravention of the Customs Act or the Regulations in respect of the goods that were seized. Under the provisions of section 133 of the Customs Act, the ring under seizure be returned to the appellant upon receipt of an amount $30,483.20 to be held as forfeit. If release of the goods is not taken on the foregoing terms, within 90 days from the date of this notice, they will be forfeited and disposed of. V. APPLICABLE LEGISLATION Report 12. (1) Subject to this section, all goods that are imported shall, except in such circumstances and subject to such conditions as may be prescribed, be reported at the nearest customs office designated for that purpose that is open for business. Time and manner of report (2) Goods shall be reported under subsection (1) at such time and in such manner as the Governor in Council may prescribe.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-8", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Who reports (3) Goods shall be reported under subsection (1) (a) in the case of goods in the actual possession of a person arriving in Canada, or that form part of the person’s baggage where the person and the person’s baggage are being carried on board the same conveyance, by that person or, in prescribed circumstances, by the person in charge of the conveyance; (a.1) in the case of goods imported by courier or as mail, by the person who exported the goods to Canada; (b) in the case of goods, other than goods referred to in paragraph (a) or goods imported as mail, on board a conveyance arriving in Canada, by the person in charge of the conveyance; and (c) in any other case, by the person on behalf of whom the goods are imported. Goods returned to Canada (3.1) For greater certainty, for the purposes of the reporting of goods under subsection (1), the return of goods to Canada after they are taken out of Canada is an importation of those goods. Where goods are reported outside Canada (4) Subsection (1) does not apply in respect of goods that are reported in the manner prescribed under subsection (2) prior to importation at a customs office outside Canada unless an officer requires that the goods be reported again under subsection (1) after importation. […] Written report (6) Where goods are required by the regulations to be reported under subsection (1) in writing, they shall be reported in the prescribed form containing the prescribed information, or in such form containing such information as is satisfactory to the Minister. […] Déclaration 12.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-9", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "(1) Sous réserve des autres dispositions du présent article, ainsi que des circonstances et des conditions prévues par règlement, toutes les marchandises importées doivent être déclarées au bureau de douane le plus proche, doté des attributions prévues à cet effet, qui soit ouvert. Modalités (2) La déclaration visée au paragraphe (1) est à faire selon les modalités de temps et de forme fixées par le gouverneur en conseil. Déclarant (3) Le déclarant visé au paragraphe (1) est, selon le cas : a) la personne ayant en sa possession effective ou parmi ses bagages des marchandises se trouvant à bord du moyen de transport par lequel elle est arrivée au Canada ou, dans les circonstances réglementaires, le responsable du moyen de transport; a.1) l’exportateur de marchandises importées au Canada par messager ou comme courrier; b) le responsable du moyen de transport arrivé au Canada à bord duquel se trouvent d’autres marchandises que celles visées à l’alinéa a) ou importées comme courrier; c) la personne pour le compte de laquelle les marchandises sont importées. Marchandises qui reviennent au Canada (3.1) Il est entendu que le fait de faire entrer des marchandises au Canada après leur sortie du Canada est une importation aux fins de la déclaration de ces marchandises prévue au paragraphe (1). Exception : déclaration à l’étranger (4) Le paragraphe (1) ne s’applique qu’à la demande de l’agent aux marchandises déjà déclarées, conformément au paragraphe (2), dans un bureau de douane établi à l’extérieur du Canada. […] Déclaration écrite (6) Les déclarations de marchandises à faire, selon les règlements visés au paragraphe (1), par écrit sont à établir en la forme, ainsi qu’avec les renseignements, déterminés par le ministre ou satisfaisants pour lui.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-10", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "[…] Decision of the Minister 131. (1) After the expiration of the thirty days referred to in subsection 130(2), the Minister shall, as soon as is reasonably possible having regard to the circumstances, consider and weigh the circumstances of the case and decide (a) in the case of goods or a conveyance seized or with respect to which a notice was served under section 124 on the ground that this Act or the regulations were contravened in respect of the goods or the conveyance, whether the Act or the regulations were so contravened; (b) in the case of a conveyance seized or in respect of which a notice was served under section 124 on the ground that it was made use of in respect of goods in respect of which this Act or the regulations were contravened, whether the conveyance was made use of in that way and whether the Act or the regulations were so contravened; or (c) in the case of a penalty assessed under section 109.3 against a person for failure to comply with subsection 109.1(1) or (2) or a provision that is designated under subsection 109.1(3), whether the person so failed to comply. (d) [Repealed, 2001, c. 25, s. 72] Exception (1.1) A person on whom a notice is served under section 130 may notify the Minister, in writing, that the person will not be furnishing evidence under that section and authorize the Minister to make a decision without delay in the matter. Notice of decision (2) The Minister shall, forthwith on making a decision under subsection (1), serve on the person who requested the decision a detailed written notice of the decision.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-11", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Judicial review (3) The Minister’s decision under subsection (1) is not subject to review or to be restrained, prohibited, removed, set aside or otherwise dealt with except to the extent and in the manner provided by subsection 135(1). Décision du ministre 131. (1) Après l’expiration des trente jours visés au paragraphe 130(2), le ministre étudie, dans les meilleurs délais possible en l’espèce, les circonstances de l’affaire et décide si c’est valablement qu’a été retenu, selon le cas : a) le motif d’infraction à la présente loi ou à ses règlements pour justifier soit la saisie des marchandises ou des moyens de transport en cause, soit la signification à leur sujet de l’avis prévu à l’article 124; b) le motif d’utilisation des moyens de transport en cause dans le transport de marchandises ayant donné lieu à une infraction aux mêmes loi ou règlements, ou le motif de cette infraction, pour justifier soit la saisie de ces moyens de transport, soit la signification à leur sujet de l’avis prévu à l’article 124; c) le motif de non-conformité aux paragraphes 109.1(1) ou (2) ou à une disposition désignée en vertu du paragraphe 109.1(3) pour justifier l’établissement d’une pénalité en vertu de l’article 109.3, peu importe s’il y a réellement eu non-conformité. d) [Abrogé, 2001, ch. 25, art. 72] Exception (1.1) La personne à qui a été signifié un avis visé à l’article 130 peut aviser par écrit le ministre qu’elle ne produira pas de moyens de preuve en application de cet article et autoriser le ministre à rendre sans délai une décision sur la question. Avis de la décision (2) Dès qu’il a rendu sa décision, le ministre en signifie par écrit un avis détaillé à la personne qui en a fait la demande.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-12", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Recours judiciaire (3) La décision rendue par le ministre en vertu du paragraphe (1) n’est susceptible d’appel, de restriction, d’interdiction, d’annulation, de rejet ou de toute autre forme d’intervention que dans la mesure et selon les modalités prévues au paragraphe 135(1). Where there is contravention 133. (1) Where the Minister decides, under paragraph 131(1)(a) or (b), that there has been a contravention of this Act or the regulations in respect of the goods or conveyance referred to in that paragraph, and, in the case of a conveyance referred to in paragraph 131(1)(b), that it was used in the manner described in that paragraph, the Minister may, subject to such terms and conditions as the Minister may determine, (a) return the goods or conveyance on receipt of an amount of money of a value equal to an amount determined under subsection (2) or (3), as the case may be; (b) remit any portion of any money or security taken; and (c) where the Minister considers that insufficient money or security was taken or where no money or security was received, demand such amount of money as he considers sufficient, not exceeding an amount determined under subsection (4) or (5), as the case may be.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-13", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "[…] Return of goods under paragraph (1)(a) (2) Goods may be returned under paragraph (1)(a) on receipt of an amount of money of a value equal to (a) the aggregate of the value for duty of the goods and the amount of duties levied thereon, if any, calculated at the rates applicable thereto (i) at the time of seizure, if the goods have not been accounted for under subsection 32(1), (2) or (5) or if duties or additional duties have become due on the goods under paragraph 32.2(2)(b) in circumstances to which subsection 32.2(6) applies, or (ii) at the time the goods were accounted for under subsection 32(1), (2) or (5), in any other case; or (b) such lesser amount as the Minister may direct. […] Cas d’infraction 133. (1) Le ministre, s’il décide, en vertu des alinéas 131(1)a) ou b), que les motifs d’infraction et, dans le cas des moyens de transport visés à l’alinéa 131(1)b), que les motifs d’utilisation ont été valablement retenus, peut, aux conditions qu’il fixe : a) restituer les marchandises ou les moyens de transport sur réception du montant déterminé conformément au paragraphe (2) ou (3), selon le cas; b) restituer toute fraction des montants ou garanties reçus; c) réclamer, si nul montant n’a été versé ou nulle garantie donnée, ou s’il estime ces montant ou garantie insuffisants, le montant qu’il juge suffisant, à concurrence de celui déterminé conformément au paragraphe (4) ou (5), selon le cas.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-14", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 17", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "[…] Restitution des marchandises (2) La restitution visée à l’alinéa (1)a) peut, s’il s’agit de marchandises, s’effectuer sur réception : a) soit du total de leur valeur en douane et des droits éventuellement perçus sur elles, calculés au taux applicable : (i) au moment de la saisie, si elles n’ont pas fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), ou si elles sont passibles des droits ou droits supplémentaires prévus à l’alinéa 32.2(2)b) dans le cas visé au paragraphe 32.2(6), (ii) au moment où elles ont fait l’objet de la déclaration en détail ou de la déclaration provisoire prévues au paragraphe 32(1), (2) ou (5), dans les autres cas; b) soit du montant inférieur que le ministre ordonne. […] Federal Court 135. (1) A person who requests a decision of the Minister under section 131 may, within ninety days after being notified of the decision, appeal the decision by way of an action in the Federal Court in which that person is the plaintiff and the Minister is the defendant. Ordinary action (2) The Federal Courts Act and the rules made under that Act applicable to ordinary actions apply in respect of actions instituted under subsection (1) except as varied by special rules made in respect of such actions. Cour fédérale 135. (1) Toute personne qui a demandé que soit rendue une décision en vertu de l’article 131 peut, dans les quatre-vingt-dix jours suivant la communication de cette décision, en appeler par voie d’action devant la Cour fédérale, à titre de demandeur, le ministre étant le défendeur.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-15", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 17–19", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Action ordinaire (2) La Loi sur les Cours fédérales et les règles prises aux termes de cette loi applicables aux actions ordinaires s’appliquent aux actions intentées en vertu du paragraphe (1), sous réserve des adaptations occasionnées par les règles particulières à ces actions. VI. ISSUES\n\nTwo questions are raised: 1. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act? 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful? VII. ANALYSIS a. Is the Applicant able to challenge in judicial review the Minister’s determination made pursuant s. 131 of the Act that the Applicant contravened s. 12 of the Act?\n\nThe Applicant is challenging the Minister’s finding of a contravention of the Act made pursuant s. 131 of the Act of this application for judicial review. Subsection 131(3) of the Act is a privative clause within the Customs Act that requires decisions made pursuant to s. 131 of the Act be subject to review only as described in s. 135(1) of the Act. Subsection 135(1) of the Act requires that a Minister’s decision made under s. 131 of the Act be appealed by way of an action.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-16", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 20", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "No such statutory right of appeal exists with respect to Ministerial decisions taken under s. 133 of the Act. Section 133 of the Act provides that where the Minister finds under s. 131 of the Act that a contravention of the Act has occurred, the Minister may impose a penalty or other applicable remedial action such as the return of goods on receipt of an amount of money. Accordingly, a determination made pursuant s. 133 of the Act may often be dependent on a finding of a contravention of the Act. Nevertheless, the two decisions are separate and distinct, and must be challenged separately. The determination made pursuant to s. 131 of the Act in respect of a contravention of s. 12 of the Act may only be appealed by way of an action to this Court. Meanwhile, a determination made pursuant s. 133 of the Act regarding the release of the goods may be challenged only by way of an application for judicial review in accordance with s. 18.1 of the Federal Courts Act, R.S.C., 1985, c. F-7.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-17", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 21", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "As Justice Carolyn Layden-Stevenson recognized in a case interpreting similarly structured legislation, “the result is one that is both awkward and inconvenient” (Dokaj, above, at para. 39). Indeed, Justice Andrew Mackay of this Court, in ACL Canada Inc., above, recommended that the bifurcated legislative scheme be amended by Parliament: [56] I note in passing that if my interpretation of the Act is correct, there is an anomalous situation presented for anyone seeking to question the Minister's decisions in relation to seizures and forfeitures. The Act provides for an appeal of a decision of the Minister on the issue of whether there has been a contravention of the Act or regulations and such an appeal may be made by way of an action in this Court within 90 days of notice of the decision. The exercise of discretion in imposing the penalty, like any other administrative discretion, even where there is a privative clause, is subject to judicial review in this Court, but since amendments to the Federal Court Act effective February 1, 1992, relief must be sought by an application for judicial review, not by an action, to be commenced within 30 days of the decision sought to be reviewed, unless the Court grants an extension of time to apply. The person affected by customs seizures and penalties can only be confused by the two remedial processes Parliament has now provided under the two statutes. Parliament might well consider whether both decisions of the Minister, under ss. 131 and 133, should be subject to review in a single proceeding, by way of an appeal or on application for judicial review.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-18", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 22", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "The interpretation of the Act, requiring that s. 131 determinations be appealed by an action has repeatedly been supported by this Court as proceedings by way of judicial review have not been able to address the evidence in such cases due to the technical language in the legislation with its privative clause (See Dokaj, above at para. 42; ACL Canada Inc., above, at paras. 52-56; Time Data Recorder International Ltd. v. Canada (Minister of National Revenue - M.N.R.), (1993) 66 F.T.R. 253, 42 A.C.W.S. (3d) 66 (F.C.T.D.) at para. 22 aff’d. (1997) 211 N.R. 229, 70 A.C.W.S. (3d) 819 (F.C.A.) at para. 21; He v. Canada (2000), 182 F.T.R. 85, 95 A.C.W.S. (3d) 82 (F.C.T.D.) at para. 11.) 2. Was the Minister’s decision pursuant s. 133 of the Act requiring the Applicant to remit a certain monetary amount for the release of the seized ring unlawful?", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-19", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 23–24", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "On judicial review, this court agrees with the position of the Respondent, as the court has no choice due to the legislation as specified. Ms. Nguyen has not shown that the determination by the Minister made pursuant s. 133 was unlawful. All of Ms. Nguyen’s evidence and argument was directed solely towards showing that she had not contravened s. 12 of the Act. As stated above, that inquiry cannot be made by this Court in an application for judicial review; it would have to be taken by means of an action within the current legislation; and, thus, the context for the court decision would be different. Ms. Nguyen has not provided any other evidence or argument in response to the Minister’s determination made pursuant to s. 133 of the Act regarding the release of the seized ring that could alter the decision bearing in mind its present context. Nevertheless, the court, in conclusion, fully acknowledges that although the factual evidence is overwhelmingly in Ms. Nguyen’s favour, the legislative provisions with the privative clause are so restrictive that the factual evidence, although fully considered, cannot make a difference under the legislative context in Ms. Nguyen’s case. VIII. CONCLUSION\n\nIn order to attempt to overturn the Minister’s determination pursuant to s. 131 of the Act that there has been a contravention of s. 12 of the Act, the Applicant would have to make an appeal by way of an action. The Applicant, by way of judicial review, has not been able to show that the Minister’s determination made pursuant s. 133 of the Act was unlawful.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-20", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 25–27", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Recognizing the related, but separate, nature of the s. 131 and s. 133 determinations, it is open to this Court to suspend a judicial review of a determination made pursuant s. 133 of the Act until an appeal of a determination made pursuant s. 131 of the Act. Justice Sean Harrington stated in Samson v. Canada (Attorney General), 2008 FC 557 that when an application for judicial review of a determination made pursuant s. 133 of the Act is made before an appeal of a determination of a contravention of the Act has taken place, the judicial review ought to be suspended: [5] This implies, therefore, that it is best to file an application for judicial review of a penalty even before a hearing is held deciding the grounds of the offence. Clearly, if it were determined that no offence was ever committed, the penalty would fall and the judicial review would become moot. In any event, the judicial review ought to be suspended pending a decision on the matter before the Court.\n\nIn this case, however, given that Ms. Nguyen has not initiated any appeal of the Minister’s determination made pursuant s. 133 of the Act, this court cannot exercise a discretion it does not have. The court cannot suspend an application for judicial review when no action has been initiated. The fact that no action was initiated due to the financial considerations of the Applicant, as was clearly specified by Ms. Nguyen’s counsel during his oral representations, cannot change the nature of the limitation of the court’s discretion.\n\nTherefore, the court has no choice but to interpret the legislation rather than to formulate it. As a result, the application for judicial review must be dismissed. IX. OBITER", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-21", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 28–31", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Due to the deference owed by this court under constitutional supremacy, as discussed in the introduction, it is outside of the procedural and technical legal framework of the decision which recognizes the restrictive language of the legislation, that a reckoning of the big picture can only be examined more fully in obiter subsequent to the decision itself.\n\nExceptional circumstances require an exceptional measure of care to ensure that no case falls through the cracks.\n\nIt is recognized due to the prescription period specified in the Customs Act, and, also, due to the high cost of actions before the court, an action is often not an option for applicants.\n\nA suggestion for the executive and legislative branches (as part of an indirect dialogue that exists between the three branches of government through jurisprudence) may be to consider that citizens or residents of Canada who are about to leave Canada, prior to departure, be more easily made aware that they are to make known for the purpose of customs officials any object of worth, leaving Canada on their person or in their luggage that they intend to bring back to Canada which may initiate questions in regard to customs duties on their return.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-22", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 32", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "The case at bar may assist as an example on the basis of the evidence: customs officials appeared to have based themselves on the belief that Ms. Nguyen had obtained the ring in question in Hong Kong, whereas she consistently indicated that she had been given the ring in Vancouver. In its seizure synopsis, customs officials determined that the origin or country of purchase of the ring was in Hong Kong (Certified Record at p. 151). Moreover, in its reasons for decision, the Minister’s Delegate refers several times to how Ms. Nguyen had claimed to receive the ring as a gift from a her boyfriend in Hong Kong (Certified Record at pp. 21, 26). This loose language leaves as ambiguous whether the Minister’s Delegate believed that the ring had been given to Ms. Nguyen in Hong Kong, even though the evidence only points to the boyfriend as being a businessman from Hong Kong. As stated above, Ms. Nguyen consistently indicated that she had been given the ring in Vancouver. In the customs officer’s own narrative report, the customs officer reports that Ms. Nguyen indicated to her that the ring was given to her in Vancouver (Certified Record at pp. 157). The Minister’s Delegate never makes a clear determination as to where the ring was received.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-23", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "paras 33–34", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "It appears that Ms. Nguyen did everything she reasonably could have done given her particular factual circumstances. While the decision stated that the appraisal and invoice of the ring “does not constitute evidence that the ring was legally imported into Canada or that applicable duties and taxes were accounted for” (Certified Record at p. 14); the evidence demonstrates that Ms. Nguyen provided as much documentation of the ring as she reasonably could have possibly done. As stated in the facts, Ms. Nguyen provided at the border an appraisal, an invoice, and a diamond grading report for the ring. The appraisal for the diamond in the ring was conducted by a gemological consultant in Vancouver on March 31, 2005. This appraisal suggested an insurance coverage of the diamond before its affixation to a gold ring at $124,800. The invoice was with respect to the cost of setting the diamond in a gold band. This invoice was issued by a jeweller located in Vancouver and was dated April 15, 2005.\n\nThe diamond grading report was with respect to the diamond and was dated September 15, 2003 in Antwerp, Belgium. Diamonds are usually imported from abroad by Canadian jewelers. As is clearly stated in the July 8, 2007 GLS Gemlab Limited letter, “Any Canadian jeweller can import loose diamonds and import mountings from Hong Kong or India, set the diamonds and sell these items in Canada” (Certified Record at p. 79). Thus, most diamonds purchased by consumers in Canada will have already been imported by Canadian jewelers. Private individual buyers of diamond rings would not have any evidence as to whether the diamonds were legally imported or that applicable duties and taxes were accounted for as that would have been done by those in the business thereof.", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-24", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 35", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Moreover, as stated by the Applicant at paragraphs 24-25 of its Memorandum of fact and law, it is not unusual for people who have owned jewelry for a long time, such as Ms. Nguyen, to no longer possess the cash receipts with respect to all her jewelry. Here, the CBSA’s own jewelry appraisers give evidence that it is reasonable for the ring to have been in Canada for several years. In an appraisal dated March 7, 2007 made at the request of the government itself, the CBSA, GLS Gemlab Limited stated that the ring “has been worn for some time…” (Certified Record at p. 117). In a follow-up letter, GLS Gemlab Limited, mandated by the government itself as demonstrated above, stated that the original owner of the diamond in the ring would have most likely have been given a certificate describing the characteristics of the diamond. Nevertheless, GLS Gemlab Limited stated that “I meet many people who own laser engraved diamonds and they do not have the matching paper work” (Certified Record at p. 79).", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" + }, + { + "id": "fc-56900-25", + "doc_type": "caselaw", + "act_code": "2009 FC 724", + "act_short": "Nguyen", + "act_name": "Nguyen v. Canada (Public Safety and Emergency Preparedness)", + "section": "", + "citation": "Nguyen v. Canada (Public Safety and Emergency Preparedness), 2009 FC 724", + "marginal_note": "para 36", + "heading": "Customs Act; judicial review of the amount set for a penalty or ascertained forfeiture", + "part": "Federal Court", + "division": "", + "text": "Finally, it does not appear reasonable for the recipient of a gift to ask the person who has given the gift for a sales receipt. Ms. Nguyen has also consistently stated that the ring was given to her in Vancouver by her boyfriend. While there may have been some confusion as to whether her boyfriend owned businesses in Hong Kong or in Vancouver, information relayed by Ms. Nguyen through a translator to a customs officer who initially asked several questions at once, these answers, in and of themselves, do not appear to constitute core evidence that would help lead to a determination of the origin of the ring. Ms. Nguyen’s documentary evidence appears to substantiate her response to the customs officers, yet, nevertheless, that has not changed her situation. JUDGMENT THIS COURT ORDERS that the application for judicial review is dismissed. “Michel M.J. Shore” Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: T-1390-08 STYLE OF CAUSE: THI NGOC NGUYEN and THE MINISTER OF PUBLIC SAFETY AND EMERGENCY PREPAREDNESS PLACE OF HEARING: Vancouver, British Columbia DATE OF HEARING: July 7, 2009 REASONS FOR JUDGMENT AND JUDGMENT: Shore J. DATED: July 15, 2009 APPEARANCES: Mr. Moses Kajoba FOR THE APPLICANT Ms. Suzanne Pereira FOR THE RESPONDENT SOLICITORS OF RECORD: KAJOBA & COMPANY Barristers & Solicitors Vancouver, British Columbia FOR THE APPLICANT MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Vancouver, British Columbia FOR THE RESPONDENT", + "current_to": "2009-07-15", + "last_amended": "", + "history": "", + "source_url": "https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/56900/index.do" } ] \ No newline at end of file