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

23rd Jul 2015 Comments Off on 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“).

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

21st Jan 2013 Comments Off on 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.

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Certified Question on Section 7 Charter Rights

13th Feb 2012 Comments Off on 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,

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Singh v. Canada: The Charter Applies to Refugee Claimants

17th Aug 2010 Comments Off on Singh v. Canada: The Charter Applies to Refugee Claimants

Singh v. Minister of Employment and Immigration was a 1985 Supreme Court of Canada decision that is to this day arguably the most significant decision that Canada’s Supreme Court has made in the area of Canadian immigration and refugee law.

The Facts

The Appellants were a mixture of Sikh and Guyanese individuals who sought refugee status in Canada during the late 1970s and early 1980s. At the time, the Immigration and Refugee Board did not yet exist.  Rather, asylum claimants submitted refugee claims directly to Canada’s immigration department, who would determine whether someone was a refugee based on advice received from the Refugee Status Advisory Committee.  If the claimant was unsuccessful, they could appeal to the Immigration Appeal Board.  Both the initial claim and the appeal were based on written submissions, and at the initial petition for asylum a claimant would also be questioned under oath by an immigration officer.  Applicants were not allowed to make oral appeals.  Nor could they respond to arguments made against them by the Refugee Status Advisory Committee.

The Appellants in Singh argued that the lack of a hearing violated Canada’s Charter of Rights and Freedoms. 

The Supreme Court’s Decision

The Supreme Court of Canada’s decision was a split one, although all six justices determined that the previous approach which denied an oral hearing could not stand.  Three of the justices based their decision on the Charter.  Three based it on Canada’s Bill of Rights. 

The key and lasting holdings of the Supreme Court of Canada were  that while non-citizens do not have a right to enter or remain in Canada, a refugee who does not have a safe haven elsewhere is entitled to rely on Canada’s willingness to live up to the obligations it has undertaken as a signatory to the United Nations Convention Relating to the Status of Refugees and that the principles of fundamental justice demand,

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Section 24 of the Charter and Immigration

Section 24 of the Charter and Immigration

18th Jun 2010 Comments Off on 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,

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