r v. Canada, 2016 FCA 51

[2017] 1 F.C.R. 318 2016 FCA 51 A-545-14 Emelian Peter ( Appellant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) A-546-14 Sureshkumar Savunthararasa ( Appellant ) v. The Minister of Public Safety and Emergency Preparedness ( Respondent ) Indexed as: Peter v. Canada (Public Safety and Emergency Preparedness) Federal Court of Appeal, Dawson, Webb and Rennie JJ.A.—Toronto, January 18; Ottawa, February 12, 2016.

Citizenship and Immigration — Exclusion and Removal — Removal of Refugees — Removals process — Appeals from Federal Court decisions dismissing applications for judicial review of decisions by Immigration and Refugee Board of Canada, Refugee Protection Division denying appellants’ refugee claims — Appellants’ requests for deferral of removal pending assessment of risks in light of new evidence denied by enforcement officer — Appellants arguing Immigration and Refugee Protection Act, s. 112(2) (b.1), “removals process” violating Canadian Charter of Rights and Freedoms, s. 7 rights — Federal Court finding Act , s. 112(2)(b.1), removals process complying with Charter — Whether Federal Court erred in analysis of whether removals process infringing Charter, s. 7 — Appellants not demonstrating that Federal Court’s findings vitiated by palpable, overriding error — Findings consistent with risks identified by appellants in submissions to enforcement officer — New risks asserted by appellants arising from their profiles — No need for Federal Court to engage in Charter analysis to dispose of judicial review applications — Federal Court’s Charter analysis unsupported by proper evidentiary record — In case issue to be re-litigated, some comments provided on nature of required analysis — Incumbent on judge to make clear findings as to nature, scope of risk of harm applicant would face on return to country of origin — Next step whether Charter, s. 7 engaged if risk of harm not assessed by enforcement officer — Federal Court having to be mindful to analyze whether removals scheme engaging Charter — If Charter, s. 7 engaged, judge having to determine whether deprivation of security of person in accordance with principles of fundamental justice — Need for clear findings of fact reinforced at this stage — Appeals dismissed.

Constitutional Law — Charter of Rights — Fundamental Freedoms — Federal Court dismissing applications for judicial review of decisions by Immigration and Refugee Board of Canada, Refugee Protection Division denying appellants’ refugee claims — Appellants’ requests for deferral of removal pending assessment of risks in light of new evidence denied by enforcement officer — Appellants arguing Immigration and Refugee Protection Act, s. 112(2) (b.1), “removals process” violating Charter, s. 7 rights — Federal Court finding Act , s. 112(2)(b.1), removals process complying with Charter — Whether Federal Court erred in its analysis of whether removals process infringing Charter, s. 7 — There was no need for Federal Court to engage in Charter analysis to dispose of judicial review applications — Federal Court’s Charter analysis unsupported by proper evidentiary record — In case issue to be re-litigated, some comments provided on nature of required analysis — Incumbent on judge to make clear findings as to nature, scope of risk of harm applicant would face on return to country of origin — Next step whether Charter, s. 7 engaged if risk of harm not assessed by enforcement officer — Federal Court having to be mindful to analyze whether removals scheme engaging Charter — If Charter, s. 7 engaged, judge having to determine whether deprivation of security of person in accordance with principles of fundamental justice — Need for clear findings of fact reinforced at this stage.

These were appeals, heard together, from two Federal Court decisions dismissing applications for judicial review of decisions by the Refugee Protection Division (RPD) of the Immigration and Refugee Board of Canada denying the appellants’ refugee claims. The appellants, Tamils, failed to demonstrate that if returned to Sri Lanka they would face a serious possibility of persecution. The appellants were scheduled to be removed from Canada. They requested that their removal be deferred pending an assessment of the risks they faced in light of new evidence of risk.

Each request for deferral was supported by extensive documentation about conditions in Sri Lanka. The requests for deferral were denied by an enforcement officer of the Canada Border Services Agency. On judicial review, the appellants argued that both paragraph 112(2) (b.1) of the Immigration and Refugee Protection Act and the “removals process” violated rights they possessed that were protected by

section 7 of the Canadian Charter of Rights and Freedoms . The appellants submitted, inter alia , that the “risk of harm” that engages

section 7 is broad enough to encompass the kinds of risks assessed under sections 96 and 97 of the Act, and that enforcement officers are not permitted to assess this full spectrum of risk. The Federal Court found that paragraph 112(2)(b.1) of the Act and the removals process comply with

section 7 of the Charter. At issue was whether the Federal Court erred in its analysis of whether the removals process infringes

section 7 of the Charter . Held , the appeals should be dismissed. The appellants did not demonstrate that the Federal Court’s findings were vitiated by any palpable and overriding error of fact or mixed fact and law, or any extricable legal error. These findings were wholly consistent with the risks identified by the appellants in their submissions to the enforcement officer requesting deferral. The new risks asserted by the appellants arose from their profiles. In the case of the appellant Mr.

Peter, as a former employee of an international aid agency and as a member of a family whose members have been investigated by the Sri Lankan authorities; and in the case of the appellant Mr. Savunthararasa, as a Tamil male who is a refused refugee

claimant in Canada. In these circumstances, the Federal Court ought not to have embarked on its lengthy Charter analysis unsupported bya proper evidentiary record. That said, these appeals were viewed effectively to be test cases on the validity of paragraph 112(2)(b.1) ofthe Act. In the event this issue was to be re-litigated, some comments were provided on the nature of the required analysis. It isincumbent on a judge hearing an application for judicial review to make clear findings as to the nature and scope of the risk of harm anapplicant would face on return to his country of origin.

If the judge then makes a finding that an applicant faces a risk of harm that wouldnot be assessed by an enforcement officer, the judge should consider whether

section 7 of the Charter is engaged. In the context of aclaim asserting a broader concept of security of the person, the Federal Court must be mindful of the need to properly analyze at the firststage of the

section 7 analysis whether the removals scheme imposes limits on the security of the person, thus engaging

section 7 of theCharter. If

section 7 is engaged, the Federal Court should then determine whether the deprivation of the claimant’s security of the personis in accordance with the principles of fundamental justice. At this stage, the need for clear findings of fact is reinforced because what isrequired by the principles of fundamental justice must be determined in the context of the specific fact situation. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,No. 44], s. 7. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97, 112(2)(b.1). CASES CITED APPLIED: MacKay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385. CONSIDERED: Singh et al. v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422;Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3. REFERRED TO: Baron v.

Canada (Minister of Public Safety and Emergency Preparedness), 2009 FCA 81, [2010] 2 F.C.R. 311; Shpati v. Canada(Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133. appEALs from two Federal Court decisions (2014 FC 1073, [2016] 2 F.C.R. 501; 2014 FC 1074) dismissing applications for judicialreview of decisions by the Refugee Protection Division of the Immigration and Refugee Board of Canada denying the appellants’refugee claims. Appeals dismissed. APPEARANCES Barbara Jackman and Sarah L. Boyd for appellants. Kristina Dragaitis and Amy King for respondent.

SOLICITORS OF RECORD Jackman, Nazami & Associates, Toronto, for appellants. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment rendered in English by [1] Dawson J.A.: Subject to certain exemptions and exceptions not relevant to these appeals, paragraph 112(2)(b.1) of theImmigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) prohibits a person from applying for a pre-removal risk assessment(PRRA) if a specified period of time has not elapsed since the person’s claim for refugee protection was last rejected.

The specifiedperiod of time is 12 months, unless the person is a national of a designated country of origin. For nationals of designated countries oforigin, 36 months must elapse from the last rejection of their refugee claim before an application for a PRRA may be made. I.

Background Facts [2] The appellants are Tamils from Sri Lanka whose claims to refugee protection were denied by the Refugee Protection Division ofthe Immigration and Refugee Board of Canada on the basis that, as a result of changes in country conditions in Sri Lanka, each failed todemonstrate that if returned to Sri Lanka he would face a serious possibility of persecution. Additionally, the Refugee ProtectionDivision found that Mr.

Peter failed to provide sufficient credible and trustworthy evidence in support of his claim, and that Mr.Savunthararasa’s testimony was not “generally credible”. [3] Following their failed refugee claims, each appellant was scheduled to be removed from Canada. Each appellant sought to havehis removal deferred, submitting that new evidence of risk was available that had not been put in evidence before the Refugee ProtectionDivision. Thus, in his request for deferral, each appellant requested that his removal be deferred pending an assessment of the risks hefaced in light of the new evidence of risk.

Each request for deferral was supported by extensive documentation about conditions in SriLanka. [4] Each request for deferral was denied by an enforcement officer of the Canada Border Services Agency.

[5] Subsequently, each appellant commenced an application for judicial review of the decision refusing to defer his removal. Eachsought and obtained an order staying his removal pending determination of his application for judicial review. Thereafter, each appellantobtained an order granting leave to judicially review the decision of the enforcement officer refusing to defer his removal from Canada. [6] The appellants’ applications for judicial review were heard together by the Federal Court.

On their applications, the appellantsargued that both paragraph 112(2)(b.1) of the Act and the “removals process” violated rights they possessed that were protected bysection 7 of the Canadian Charter of Rights and Freedoms [being

Part I of the Constitution Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,Appendix II, No. 44]]. Of particular concern was the limited discretion to defer removal reposed in enforcement officers. [7] It is common ground that, based upon jurisprudence of this Court, when evidence of some new risk is put forward, anenforcement officer may defer removal when the failure to defer will expose the person seeking deferral to a risk of serious personalharm.

More specifically, an enforcement officer may defer removal where an applicant establishes a risk of death, extreme sanction orinhumane treatment that has arisen since the last assessment of risk (Baron v. Canada (Minister of Public Safety and EmergencyPreparedness), 2009 FCA 81, [2010] 2 F.C.R. 311, at paragraph 51; Shpati v. Canada (Public Safety and Emergency Preparedness),2011 FCA 286, [2012] 2 F.C.R. 133, at paragraphs 41–43). Enforcement officers are not to conduct a full assessment of the alleged risks,nor come to a conclusion as to whether the person is at risk.

Rather, officers are to consider and assess the risk-related evidence in orderto decide whether deferring removal is warranted in order to allow a full assessment of risk. [8] In the appellants’ submission,

section 7 of the Charter is engaged when a person claims he will be at “risk of harm” if removedfrom Canada. Further, the “risk of harm” which engages

section 7 is broad enough to encompass the kinds of risks assessed under bothsection 96 of the Act (a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social groupor political opinion) and

section 97 of the Act (a risk of torture or a risk to life or a risk of cruel and unusual treatment or punishment).The appellants argue that enforcement officers do not, and are not permitted to, assess this full spectrum of risk. [9] The appellants framed two issues before the Federal Court. First, does paragraph 112(2)(b.1) of the Act infringe

section 7 of theCharter? Second, does the removals process violate

section 7 of the Charter? [10] For reasons cited as 2014 FC 1073, [2016] 2 F.C.R. 501, a judge of the Federal Court found that both paragraph 112(2)(b.1) ofthe Act and the removals process comply with

section 7 of the Charter. The Judge also found the decision refusing each appellant’srequest to defer removal was reasonable. The Judge certified two questions of general importance [at paragraph 328]: 1. Does the prohibition contained in paragraph 112(2)(b.1) of the Immigration and Refugee Protection Act against bringing a pre-removal risk assessment application until 12 months have passed since the claim for refugee protection was last rejected infringe section7 of the Charter? 2.

If not, does the present removals process, employed within 12 months of a refugee claim being last rejected, when determiningwhether to defer removal at the request of an unsuccessful refugee claimant for the purpose of permitting a pre-removal risk assessmentapplication to be advanced, infringe

section 7 of the Charter? [11] These are the appeals from the judgments of the Federal Court dismissing each application for judicial review. The appeals wereheard together, accordingly a copy of these reasons will be placed on each file. II. The Issue [12] I would frame the issue raised by the appellants in this appeal to be whether the Federal Court erred in its analysis of whether theremovals process infringes

section 7 of the Charter. [13] In framing the issue in this fashion, I note that the Federal Court found paragraph 112(2)(b.1) of the Act to be Charter-complianton the basis that the removals process could be carried out in a manner that was in accordance with the requirements of the Charter(reasons, at paragraphs 86, 97 and 98).

The appellants do not take issue with this conclusion (appellants’ joint memorandum of fact andlaw, at paragraph 27). [14] The appellants view the decision of the Federal Court to be so flawed that they do not put in issue the finding of the FederalCourt that the enforcement officers’ decisions were reasonable. [15] I agree that the analysis of the Federal Court was flawed. I reach this conclusion on the following basis. III. Analysis [16] It is well-settled law that Charter issues must not be decided in a factual vacuum. Illustrative of this principle is Justice Cory’scomment in MacKay v.

Manitoba that to attempt to decide Charter issues without a proper evidentiary record “would trivialize theCharter and inevitably result in ill-considered opinions. The presentation of facts … is essential to a proper consideration of Charterissues” (MacKay v.

Manitoba, (SCC), [1989] 2 S.C.R. 357, at page 361). [17] In the present case, the Judge made the following findings of mixed fact and law: • The risk of harm asserted by each appellant would fall within the scope of risk that would be assessed by an enforcement officer(reasons, at paragraph 203). • The appellants’ allegations of a well-founded fear of persecution upon return to Sri Lanka “would be directly related to detentionand physical harm that reaches a threshold which is to be assessed” under the test applied by enforcement officers (reasons, at paragraph213). • The appellants “describe risks which are in the nature of extreme sanctions or inhumane treatment, both of which are assessed

under

section 97 of the [Immigration and Refugee Protection Act]. One would have thought that in a test case, the facts demonstrating thefailure to test for

section 96 [Immigration and Refugee Protection Act] factors would have been in plain evidence before the Court”(reasons, at paragraph 223). • The appellant, Mr.

Peter “is making a novel argument on a test that has been employed for over a decade and is not advancingfacts that permit the Court to consider whether any allegedly unassessed risk of persecution would nevertheless fall into the category ofinhumane treatment” (reasons, at paragraph 235). [18] The appellants have not demonstrated that these findings are vitiated by any palpable and overriding error of fact or mixed factand law, or any extricable legal error. [19] These findings are wholly consistent with the risks identified by each appellant in his submission to the enforcement officerrequesting deferral. [20] Thus, the new risks asserted by Mr.

Peter arose from his profile as a former employee of the international aid agency CARE andhis profile as a member of a family known to authorities whose members had been investigated by the Terrorist Investigation Division(Peter appeal book, Tab 11, at page 234). Based on these profiles, Mr. Peter was said to face a risk of torture, arbitrary arrest anddetention, kidnapping, extortion, and murder (Peter appeal book, Tab 11, at page 239). Based on the country condition documentation,these risks would fall within the ambit of extreme sanctions or inhumane treatment. [21] Similarly, Mr.

Savunthararasa submitted he faced risks arising from his profile as a “young Tamil male from the north, who hasspent time abroad, and who is a refused refugee claimant in Canada” (Savunthararasa appeal book, Tab 7, at page 47). He submitted thatremoval to Sri Lanka would expose him “to risk of death, extreme sanction, or cruel and inhumane treatment” (Savunthararasa appealbook, Tab 7, at page 41). [22] In these circumstances, the Judge ought not to have embarked on his lengthy Charter analysis unsupported by a properevidentiary record. This error is sufficient to dispose of these appeals.

It follows that any comments or analysis beyond the Judge’sfindings, quoted above at paragraph 16, are obiter dicta and these reasons should not be read as endorsing the Judge’s obiter comments.This particularly applies to the Judge’s concern about the need for greater clarity about the nature of the harm that at law constitutes awell-founded fear for the purpose of defining persecution. [23] This said, I am mindful that these appeals were viewed effectively to be test cases on the validity of paragraph 112(2)(b.1) of theAct.

In the event this issue is to be re-litigated, I offer the following comments on the nature of the required analysis. [24] In these proceedings, the evidence of risk of harm was in largest part found in the extensive documentation submitted by theappellants that set out country conditions in Sri Lanka. Such documentation is in

part conflicting and deals with a panoply ofcircumstances including, for example, information concerning restrictions on the cultural life of members of the Tamil community.

Inthis circumstance, it is incumbent on a judge hearing an application for judicial review to make clear findings as to the nature and scopeof the risk of harm an applicant would face on return to his country of origin. [25] Once the nature and scope of the risk faced has been clearly delineated, a judge should consider and make findings about which,if any, risks faced would not be assessed by an enforcement officer considering a request to defer removal. [26] If an applicant for deferral is found to face a risk of harm that would not be assessed by an enforcement officer, a judge shouldnext consider whether in the circumstances

section 7 of the Charter is engaged. [27] In Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, in order to decide whether theappellants had been deprived of the right to life, liberty or security of the person, the Court began by determining which rights theappellants possessed under the applicable immigration legislation.

Those rights were found to be the right to a determination on properprinciples as to whether a permit should issue allowing the appellants, as persons claiming refugee status, to enter and remain in Canada,the right not to be returned to a country where the appellants’ life or freedom would be threatened, and the right to appeal a removal ordeportation order made against them. [28] Once the rights possessed by the appellants as refugee claimants were identified, the inquiry turned to whether the deprivation ofthose rights constituted a deprivation of the right to life, liberty and security of the person within the meaning of

section 7 of the Charter.The Court concluded that security of the person encompassed “freedom from the threat of physical punishment or suffering as well asfreedom from such punishment itself” (Singh, at page 207). The Court expressly left open the question of whether a more expansiveapproach to security of the person should be taken (Singh, at page 207). [29] Because the Court left this question open, in the context of a claim asserting a broader concept of security of the person, theFederal Court must be mindful of the need to properly analyze at the first stage of the

section 7 analysis whether the removals schemeimposes limits on the security of the person, thus engaging

section 7 of the Charter. [30] If

section 7 is found to be engaged, the inquiry moves to the second stage of the

section 7 analysis: the determination of whetherthe deprivation of the claimant’s security of the person is in accordance with the principles of fundamental justice. [31] At this stage, the need for clear findings of fact is reinforced because what is required by the principles of fundamental justicemust be determined in the context of the specific fact situation (Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC1, [2002] 1 S.C.R. 3, at paragraph 113).

This is because the greater the effect on the life of the individual by impugned legislation or stateaction, “the greater the need for procedural protections to meet the common law duty of fairness and the requirements of fundamentaljustice under s. 7 of the Charter” (Suresh, at paragraph 118). IV. Conclusion

[ 32 ] In his judgments, the Judge dismissed each application for judicial review and certified two questions. As the appellants have failed to show the Judge erred in his finding that they presented no evidence of risks they face that would not be assessed by an enforcement officer, I would dismiss these appeals. The certified questions should not be answered because they do not arise on the record. Webb J.A .: I agree. Rennie J.A.: I agree.