On July 19, 2010, the Federal Court in Peer v. Canada (Citizenship and Immigration), 2010 FC 752 certified the following question:
Is a person inadmissible to Canada for “engaging in an act of espionage… against a democratic government, institution or process” within the meaning of subsection section 34(1)(a) of the Immigration and Refugee Protection Act, if the person’s activities consist of intelligence gathering activities that are legal in the country where they take place, do not violate international law and where there is no evidence of hostile intent against the persons who are being observed?
On March 9, 2011, the Federal Court of Appeal answered. The answer is yes.
Does the Immigration and Refugee Board (“IRB”) violate the provisions of section 7 of the Canadian Charter of Rights and Freedoms (the “Charter”) if it declines to postpone a hearing based on risk to life where there is a pending humanitarian and compassionate application also based on risk to life?
The above question was certified by the Federal Court in Laidlow v. Canada, 2012 FC 144, released today. The Federal Court of Appeal will soon answer the question.
The facts in Laidlow giving rise to the question were essentially that an individual had a pending H&C claim which was based on risk to life (availability of medical treatment reasons) at the time that he appeared for his refugee hearing. He asked that the refugee hearing be adjourned until the H&C application was determined. The IRB refused to do so, and heard the refugee claim, which was dismissed.
The Court’s answer to the question was that refusing to adjourn the hearing did not breach section 7 of the Charter. Relying on Poshteh v. Canada,  3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada),  4 SCR 429, the Court articulated the following principles:
- A finding of inadmissibility does not engage an individual’s section 7 Charter rights. The reason is because a number of proceedings may take place before an individual reaches the stage at which his deportation from Canada may occur.
- Section 7 does not place upon the state a positive obligation to ensure that each persons enjoys life, liberty or security of the person. Rather, it restricts the state’s ability to deprive people of these.
Considering that the jurisprudence is fairly settled on the first point, I find it surprising that the Court certified the question that it did. I also do not see how from a practical standpoint the question can be answered in the affirmative. Requiring that the IRB postpone refugee hearings every time a claimant files an H&C application based on risk to life would create a scheduling nightmare for the Division. You could forget about the soon to be introduced 60 day and 90 day deadlines for refugee hearings. Everyone would take advantage of this. Indeed, I would probably consider a representative who did not encourage a refugee claimant to file an H&C application in order to buy more time to prepare for the hearing to be negligent. And it wouldn’t just be limited to medical availability… Lawful sanctions… Generalized risk.. any H&C claim really could be used to buy time.
And that, combined with the established jurisprudence that the existence of further avenues to stay in Canada, and that s. 7 of the Charter does not create positive obligations on the state, is why I would be stunned if the Federal Court of Appeal answered the above question in the affirmative.