DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]

The Federal Court in Y.Z. and the Canadian Association of Refugee Lawyers v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness, 2015 FC 892 (“Y.Z.“) has certified the following two questions:

Does paragraph 110(2)(d.1) of the Immigration and Refugee Protection Act (“IRPA“) comply with subsection 15(1) of the Charter?

If not, is paragraph 110(2)(d.1) of the IRPA a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under section 1 of the Charter?

The Court also announced that effective immediately refugee claimants from designated countries of origin can access the Refugee Appeal Division (the “RAD“).

Continue reading “DCO Refugee Claimants and Access to the RAD [Updated – January 5, 2016]”


Due Process When Everything is a Crime: Court Strikes Down Human Smuggling Law

The British Columbia Supreme Court (“BCSC“) in R v. Appulonappa has struck down s. 117 of the Immigration and Refugee Protection Act (“IRPA“).  Section 117 theoretically prohibited human smuggling.  Its exact wording was:

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.

(2) 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) 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 for an offence under this section may be instituted except by or with the consent of the Attorney General of Canada.

As the BCSC noted, it is legitimate, necessary, and laudable for the Canadian government to attack and criminalize what is commonly referred to as human smuggling.

The problem with the wording of s. 117 of IRPA though is that it was incredibly vague.  Did it make humanitarian workers who provided food to people who came to Canada without the proper documents criminals?  If a refugee claimant who used a smuggler to come to Canada visited a family member then was that family member a criminal?  What about lawyers who represented such individuals in court?

The Canadian government argued that such people were obviously not intended to be prosecuted by the legislation, and that they would never would initiate proceedings against them.  However, while the government’s expressed intention to not prosecute such people was clear, this intention was not written anywhere in Canadian immigration law.  As the BCSC stated:

If the arrival of a legitimate refugee at a port of entry without the required documentation does not attract criminal liability (s. 133 of IRPAand Article 31 of the Refugee Convention), why is it a crime to assist such a refugee to arrive?

It is clear that s. 117 makes no distinction for the persons involved or reasons behind the transport to and entrance into Canada, or whether or not the accused person has profited from the transportation of persons into Canada.  This is different from the definition in the Migrant Smuggling Protocol which indicates that smuggling is an activity which occurs in order to obtain “a financial or other material benefit”.

The Crown points to no valid objective for the section to be so wide that it captures such persons referred to in the hypotheticals.

The overbreadth of the section makes it impossible for persons to know if certain activities (those of humanitarian aid workers and close family members) will result in charges under s. 117, despite Canada’s intention to the contrary.  One of the reasons for the rule against overbroad sections is that persons are entitled to prior notice as to what are the limits of proper behaviour, and what is criminal behaviour.

The BCSC accordingly found that s. 117 of IRPA was overbroad, and struck the law entirely.

The Crown is now appealing.

While it is certainly annoying to watch individuals “get away” with a crime because of poorly drafted legislation, I believe that the problem of overbroad legislation combined with complete prosecutorial discretion is far more serious, and warrants serious attention from the public.   Conservative writer David French recently wrote in the National Review on this issue that:

Can we even speak of the rule of law as a meaningful concept when we combine an explosive regulatory state with near-absolute prosecutorial discretion? As many others have noted, the regulatory state makes ever-more conduct — even benign conduct — unlawful, while absolute discretion grants the prosecutor the right of the King’s pardon. Overlay that legal reality with a stark red/blue divide, and the situation is ripe for the most base forms of political and personal favoritism. Glenn Reynolds (Instapundit) has been all over this issue, and I love his phrasing: “Due process when everything is a crime.”

Glenn Reynolds, author of Instapundit, recently published a short article on this issue.  I encourage you to read it in its entirety.

Reynolds, Glenn Harlan, Ham Sandwich Nation: Due Process When Everything is a Crime (January 20, 2013). Available at SSRN: http://ssrn.com/abstract=2203713


Singh v. Canada: The Charter Applies to Refugee Claimants

In today’s Toronto Sun, Ezra Levant writes that:

In a 1985 case called Singh v. Minister of Employment and Immigration, the court ruled that our Charter of Rights applied to foreigners, not just Canadian citizens.

Foreigners overseas could now use the Charter to enforce their “rights” against our country.

The six judges hearing that case were split on the subject, three against three. But a tie is broken by the Chief Justice. So one, unelected man changed Canada’s immigration system, granting foreigners the right to sue their way into our country, from wherever they might be in the world.

This description of how the Court was divided in Singh is misleading. While the court was split on whether to apply the Charter or the Canadian Bill of Rights to the refugees, all six justices found that the refugee claimants in that case had a right to a hearing.

Paragraphs 34-62 of the judgment set out the analysis of whether the Charter applies to refugee claimants.

Wilson J’s analysis began by noting that s. 32(1)(a) of the Charter states that:

32. (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament…

Given that immigration is a matter falling within the authority of Parliament, then it naturally follows that the creation and administering of immigration rules are subject to the Charter.

Since immigration is clearly a matter falling within the authority of Parliament under s. 91(25) of the Constitution Act, 1867, the Immigration Act, 1976 itself and the administration of it by the Canadian government are subject to the provisions of the Charter.

He then noted the wording of section 7 of the Charter compared to other sections. Some of these sections were:

6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

7(1) 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.

The appellants argued that use of the word “everyone” as opposed to “every citizen” means that s. 7 applies to a broader class of persons than citizens and permanent residents.  The government conceded this point (something that I’m sure would shock Mr. Levant).

Thus, Wilson J found that section 7 of the Charter applies to every human being who is physically present in Canada and by virtue of such presence amenable to Canadian law.


Section 24 of the Charter and Immigration

On June 11, 2010, the Supreme Court of Canada released its decision in R v. Conway, 2010 SCC 22 (“Conway“).  Conway explored the relationship between the Charter, its remedial provisions, and administrative tribunals. 

Sections 24(1) and 24(2) of the Charter deal with remedies. Section 24(1) states that anyone whose Charter rights or freedoms have been infringed upon or denied may apply to a “court of competent jurisdiction” to obtain a remedy that is “appropriate and just in the circumstances”. Section 24(2) states that in those proceedings, a court can exclude evidence obtained in violation of the Charter if its admission would bring the administration of justice into disrepute.

In Conway, the appellant argued that several of his Charter rights were breached when he was detained in mental and health facilities, and sought an absolute discharge as the remedy.   The Ontario Review Board (the “Board“) found that it had no Charter jurisdiction to issue a s. 24(1) remedy.  The Ontario Court of Appeal found that the Board lacked jurisdiction to grant an absolute discharge as a Charter remedy because granting such a discharge would, in the appellant’s case, be a significant threat to the public and frustrate the intent of Parliament.

After reviewing the jurisprudence surrounding the application of s. 24 to administrative tribunals, the Supreme Court of Canada articulated a two-part test to determine whether an administrative tribunal has the jurisdiction to issue a particular s. 24 remedy. The two parts are:

  1. Does the administrative tribunal has explicit or implicit jurisdiction to decide questions of law? If it does, and unless it is clearly demonstrated that the legislature intended to exclude the Charter from the tribunal’s jurisdiction, then the tribunal is a court of competent jurisdiction which can consider and apply the Charter – including its remedies – when resolving the matters properly before it.
  2. Can the tribunal grant the particular remedy sought, given the relevant statutory scheme? In analyzing this, what will be at issue is whether the remedy sought is the kind of remedy that the legislature intended would fit within the statutory framework of the particular tribunal. Relevant factors include the tribunal’s statutory mandate, its structure, and its function.

Applying this test in Conway, the Supreme Court of Canada found that the Board was a quasi-judicial body that was authorized to decide questions of law, and that there was nothing to conclude that Parliament intended to withdraw Charter jurisdiction from the scope of the Board’s mandate.  However, the Court also found that the Criminal Code precluded the Board from granting an absolute discharge, and that the Board therefore could not grant one as part of a s. 24 Charter remedy.

The question that arises is to what extend can either the Immigration and Refugee Board or immigration officers issue Charter remedies?

Continue reading “Section 24 of the Charter and Immigration”


Certified Question on Section 7 Charter Rights

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, [2005] 3 FCR 487, and Gosselin v. Quebec (Attorney General of Canada), [2005] 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.