As the legal community continues to debate whether Bill C-49 is constitutional, the Supreme Court of Canada (“SCC“) has indirectly touched upon the issue in Németh v. Canada (“Nemeth“). One of the more controversial features of Bill C-49 is that it would prohibit designated refugees from applying for permanent residence in Canada for five years after their arrival. If there is a change in conditions in the refugee claimants’ respective homelands, then the refugees can be sent back. Many have questioned both the political, as well as constitutional, implications of such a prohibition. In Nemeth, the SCC appears to have taken the position that it would be permissible to permit such a waiting period.
The issue in Nemeth was whether a person who had successfully claimed refugee protection in Canada could be extradited back to his home country. The SCC ultimately decided that the government could extradite refugees so long as a proper analysis under section 44 of the Extradition Act was carried out. In reaching its decision, the SCC made several statements about refugee law in Canada, particularly with respect to non refoulement, which were:
 Stated in broad and general terms, the principle of non-refoulement prohibits the direct or indirect removal of refugees to a territory where they run a risk of being subjected to human rights violations. The object of the principle is the prevention of human rights violations and it is prospective in scope: Kees Wouters, International Legal Standards for the Protection from Refoulement (2009), at p. 25.
 Under the Refugee Convention, refugee status depends on the circumstances at the time the inquiry is made; it is not dependent on formal findings. As one author puts it, “it is one’s de facto circumstances, not the official validation of those circumstances, that gives rise to Convention refugee status”: James C. Hathaway, The Rights of Refugees under International Law (2005), at pp. 158 and 278. It follows that the rights flowing from the individual’s situation as a refugee are temporal in the sense that they exist while the risk exists but end when the risk has ended. Thus, like other obligations under the Refugee Convention, the duty of non-refoulement is “entirely a function of the existence of a risk of being persecuted [and] it does not compel a state to allow a refugee to remain in its territory if and when that risk has ended”: Hathaway, at p. 302; R. (Yogathas) v. Secretary of State for the Home Department,  UKHL 36,  1 A.C. 920, per Lord Scott of Foscote, at para. 106. The relevant time for assessment of risk is at the time of proposed removal: Hathaway, at p. 920; Wouters, at p. 99. This temporal understanding of refugee status under the Refugee Convention does not support the “binding effect” approach to earlier formal findings of refugee status.
 In addition, to the extent that this “binding effect” argument is based on the need for a particular procedural approach, that position is not supported by Canada’s obligations under the Refugee Convention. The Refugee Convention does not contain specific procedural provisions. While it does provide that refugees shall have free access to the courts (Article 16) and due process in relation to expulsion decisions (Article 32), it does not bind the contracting states to any particular process for either granting or withdrawing refugee status. Thus, Canada’s international undertaking with respect to non-refoulement does not commit it to any particular procedural scheme for its application in extradition matters.
The SCC’s statement that obtaining refugee status does not confer permanent protection because the principle of non-refoulement is concerned with current conditions as opposed to those that exist at a given point in time suggests that prohibiting designated refugees from applying for permanent resident status would not breach the constitution if doing so did not result in a person being repatriated to persecution.
I’ve always thought that the claims of unconstitutionality in Bill C-49 were exaggerated, and I think that Nemeth confirms this. There are definitely public policy reasons to oppose prohibiting certain refugees from applying for permanent resident status for five years. However, I would not automatically shrug off such a law as being one that will be automatically struck down for violating international treaty rights or the Charter.
This is a debate that will be won in the court of public opinion, not the judiciary.