2020 FC 770, 2020 FC 770

2020 FC 770 IMM-2977-17 The Canadian Council for Refugees, Amnesty International, The Canadian Council of Churches, ABC, DE [by her litigation guardian ABC], FG [by her litigation guardian ABC] ( Applicants ) v. The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety and Emergency Preparedness (Respondents) IMM-2229-17 Nedira Jemal Mustefa ( Applicant ) v.

The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety and Emergency Preparedness (Respondents) IMM-775-17 Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi, Reda Yassin Al Nahass ( Applicants ) v. The Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety and Emergency Preparedness (Respondents) Indexed as: Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) Federal Court, McDonald J.—Toronto, November 4–8, 2019; Ottawa, July 22, 2020.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Consolidated judicial reviews of decisions finding applicants ineligible to make refugee claims in Canada by operation of Safe Third Country Agreement (STCA) — Applicants arriving at Canada land port of entry from U.S. — One applicant returned to U.S., immediately imprisoned — Applicants seeking, inter alia, declarations that Immigration and Refugee Protection Regulations ( Regulations ), s. 159.3 ultra vires; that s. 159.3 inconsistent with Canada’s international obligations under United Nations Convention Relating to the Status of Refugees (Refugee Convention), Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (Convention Against Torture); that Regulations , s. 159.3 , Immigration and Refugee Protection Act ( Act ), s. 101(1)(

e) of no force or effect pursuant to Constitution Act, 1982, s. 52 because they violate Charter , ss. 7 , 15 — Applicants arguing, inter alia, U.S. not safe third country, factors in Act, s. 102(2) , (3) not met — As to Charter , arguing there is causal connection between Canada’s adherence to STCA, deprivation of Charter , s. 7 rights — Meaningful analysis of U.S. compliance with Refugee Convention, human rights standards lacking — Whether Regulations, s. 159.3 ultra vires of Act — Whether STCA infringing Charter , ss. 7 , 15 — Regulations , s. 159.3 not ultra vires Act — That issue determined by Federal Court of Appeal in Canadian Council for Refugees v.

Canada — Court in Canadian Council for Refugees holding that vires of Regulations not to be assessed on basis of facts, events or developments arising after promulgation thereof (i.e.

December 29, 2004) — Canadian Council for Refugees binding on vires issue herein — Applicants not meeting threshold to revisit binding nature of that decision —With respect to Charter issues, provisions enacting STCA infringing Charter , s. 7 — Actions of Canadian officials in returning ineligible STCA claimants to U.S. officials facilitating process resulting in detention — Limitation on liberty, security of the person not in accordance with principles of fundamental justice — STCA overbroad, effects of ineligibility finding thereunder disproportionate — Charter s. 7 infringement not justified under Charter s. 1 — No need to address Charter , s. 15 challenge — Questions certified — Applications allowed.

Constitutional Law — Charter of Rights — Fundamental Freedoms —Applicants found to be ineligible to make refugee claims by operation of Safe Third Country Agreement (STCA) — One applicant returned to U.S., immediately imprisoned — Applicants seeking, inter alia, declarations that Immigration and Refugee Protection Regulations ( Regulations ), s. 159.3, Immigration and Refugee Protection Act ( Act ), s. 101(1)(

e) of no force or effect pursuant to Constitution Act, 1982, s. 52 because they violate Charter, ss. 7 , 15 — Arguing causal connection existing between Canada’s adherence to STCA, deprivation of Charter, s. 7 rights — Whether STCA infringing Charter, ss. 7 , 15 — Provisions enacting STCA infringing guarantees in Charter, s. 7 — Issue in relation to s. 7 whether, in returning ineligible STCA claimants to U.S. authorities where they will be imprisoned, sufficient causal connection existing so as to engage liberty, security of person interests — Fact that STCA returnees imprisoned by U.S. authorities not immunizing actions of Canadian officials from consideration — Canada not “passive participant” — Actions of Canadian officials facilitating process that results in detention — Applicant Nedira Jemal Mustefa’s imprisonment illustration of limitation on liberty flowing directly from finding of ineligibility under Act, s. 101(1) (e) — This sufficient to establish that s. 7 liberty rights engaged — Rights of refugee claimants more than minimally impaired by STCA, deleterious effects not proportional to salutary effects — STCA legislation overbroad — Applicants

here having had no consideration of their risks or substance of their refugee claim — Risks of detention, loss of security grossly disproportional to administrative benefits of STCA — Impact of being found ineligible under STCA grossly disproportionate, out of sync with objective of legislation — Penalization of simple act of making refugee claim not in keeping with spirit or intention of STCA — S. 7 infringement not justified under Charter, s. 1 — In light of these conclusions, no need to address Charter , s. 15 challenge.

These were consolidated applications for judicial review of decisions finding the applicants were ineligible to make refugee claims in Canada by operation of the Safe Third Country Agreement (STCA). The applicants, citizens of El Salvador, Ethiopia and Syria, arrived at a Canada land port of entry from the U.S. Their refugee claims were related to gang violence and gender-based persecution.

They argued, inter alia , that the Canadian government failed in its duty to review the ongoing designation of the U.S. as a “safe third country” as required by subsections 102(2) and 102(3) of the Immigration and Refugee Protection Act ( Act ). One applicant, Nedira Jemal Mustefa, was returned to the U.S. where she was immediately imprisoned. The applicants also argued that the legislation implementing the STCA is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms ( Charter ).

The applicants sought an order that their claims for refugee protection be found eligible and referred to the Refugee Protection Division for determination; a declaration that

section 159.3 of the Immigration and Refugee Protection Regulations ( Regulations ) is ultra vires or otherwise unlawful, a declaration that

section 159.3 of the Regulations is inconsistent with Canada’s international obligations under the United Nations Convention Relating to the Status of Refugees (Refugee Convention) and the Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (Convention Against Torture); and declarations that both

section 159.3 of the Regulations and paragraph 101(1) (

e) of the Act are of no force or effect pursuant to

section 52 of the Constitution Act, 1982 , because they violate

section 7 and subsection 15(1) of the Charter . The applicants argued, inter alia , that the ongoing designation of the U.S. as a safe third country is inconsistent with the statutory purpose and the statutory grant of power. According to the applicants, based on the evidence of violations by the U.S. of the Refugee Convention, the U.S. is not a safe third country. They submitted that the factors outlined in subsections 102(2) and (3) of the Act are conditions precedent that have not been met.

They also argued that there was a lack of meaningful analysis of the U.S. compliance with the Refugee Convention and international human rights standards. As to their Charter arguments, the applicants argued, inter alia , that there is a causal connection between Canada’s adherence to the STCA and the deprivation of

section 7 Charter rights because failed STCA applicants are imprisoned upon their return to the U.S. The main issues were whether

section 159.3 of the Regulations is ultra vires of the Act , and whether the STCA infringes sections 7 and 15 of the Charter . Held , the applications should be allowed.

Section 159.3 of the Regulations is not ultra vires of the Act . That issue was determined in Canadian Council for Refugees v. Canada , 2008 FCA 229 , [2009] 3 F.C.R. 136 ( CCR 2008 ).

In that decision, the Federal Court of Appeal stated that “[a]n attack aimed at the vires of a regulation involves the narrow question of whether the conditions precedent set out by Parliament for the exercise of the delegated authority are present at the time of the promulgation” and that “the vires of the Regulations could not be assessed on the basis of facts, events or developments that are subsequent to the date of the promulgation [i.e. December 29, 2004]”. Considering these clear statements, CCR 2008 was binding herein on the vires issue. The applicants did not meet the threshold to revisit that decision.

The provisions enacting the STCA infringe the guarantees in

section 7 of the Charter . The issue in relation to

section 7 was whether, in returning ineligible STCA claimants to U.S. authorities where they will be imprisoned, there is a sufficient causal connection so as to engage liberty and security of the person interests. A sufficient causal connection is one in which “Canada’s participation is a necessary precondition” to the deprivation and “where the deprivation is an entirely foreseeable consequence of Canada’s participation”. Accordingly, the fact that STCA returnees are imprisoned by U.S. authorities does not immunize the actions of Canadian officials from consideration.

Canada Border Services Agency officials are involved in the physical handing over of claimants to U.S. officials. This conduct does not make Canada a “passive participant” and it provides a “sufficient connection” to the offending conduct. The actions of Canadian officials in returning ineligible STCA claimants to U.S. officials facilitate a process that results in detention. The applicant’s imprisonment was a clear illustration of the limitation on liberty flowing directly from a finding of ineligibility under paragraph 101(1) (

e) of the Act . Ineligible STCA claimants are returned to the U.S. by Canadian officials where they are immediately and automatically imprisoned by U.S. authorities. This was sufficient to establish that

section 7 liberty rights are engaged. The evidence established that the conditions faced by those detained engaged the security of the person interest under

section 7 of the Charter . The limitation on liberty and security of the person within the meaning of

section 7 was not in accordance with the principles of fundamental justice. The rights of refugee claimants were more than minimally impaired by the STCA and the deleterious effects (detention and threats to security of the person) were not proportional to the salutary effects (administrative efficiency). The legislative objective of the STCA is the sharing of responsibility for the consideration of refugee claims with countries that are signatory to and comply with the relevant articles of the Conventions and have an acceptable human rights record.

The legislative objective of “sharing of responsibility” provides the framework for considering whether the legislation is overbroad and disproportionate. The STCA legislation is overbroad as the deprivation of the liberty rights of STCA returnees (their detention in the U.S.) has no connection to the “mischief contemplated by the legislature” (sharing responsibility for refugees with a country that complies with the Conventions). Cases such as Tapambwa v. Canada (Citizenship and Immigration) that have held that

section 7 interests are not engaged at the removals stage are distinguishable from the facts in these applications. Here, the applicants have had no consideration of their risks or the substance of their refugee claim because of the STCA. The immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada. The “sharing of responsibility” objective of the STCA should entail some guarantee of access to a fair refugee process.

As to disproportionality, the question was whether the evidence of the impact of the STCA demonstrated that the Charter deprivation was “out of sync” with the objectives of the legislation. Ms. Mustefa’s evidence, and the evidence of the ten anonymized affiants, established that imprisonment flows automatically from a finding of ineligibility under the STCA. The risks of detention and loss of security of the person, which are facilitated by the STCA, are grossly disproportional to the administrative benefits of the STCA.

The impact of being found ineligible under the STCA is grossly disproportionate, and out of sync with the objective of the legislation. Gross disproportionality can be established based upon the impact on a single person. Here, Ms. Mustefa’s evidence alone met this test and was sufficient to “shock the conscience”. The evidence clearly demonstrated that those returned to the U.S. by Canadian officials are detained as a penalty. The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built. The

section 7 infringement was not justified under

section 1 of the Charter. In light of the conclusion that the STCA infringed

section 7 of the Charter, there was no need to address thesection 15 Charter challenge. The applications were allowed. Paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations were declared invalid. Questionswere certified as to whether the designation of the U.S. as a “safe third country” under paragraph

section 159.3 of Regulations is ultravires the Act, and whether the combined effect of paragraph 101(1)(

e) and

section 159.3 violate subsection 15(1) and/or

section 7 of theCharter. STATUTES AND REGULATIONS CITED Canadian Charter of Rights and Freedoms, being

Part I of the Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)[R.S.C., 1985, Appendix II, No. 44], ss. 1, 7, 15. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Exec. Order No. 13769, 60 Fed. Reg. 8977 (2017) (U.S.) Federal Courts Act, R.S.C., 1985, c. F-7, s. 57. Federal Courts Rules, SOR/98-106, Sch. Immigration and Nationality Act (INA), 8 U.S.C. (2006). Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 44, 101, 102. Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 159.3, 159.5(b)(ii). Order in Council P.C. 2004-1158. Order in Council P.C. 2015-0809.

TREATIES AND OTHER INSTRUMENTS CITED Agreement between the Government of Canada and the Government of the United States of America for Cooperation in the Examinationof Refugee Status Claims from Nationals of Third Countries, 5 December 2002, [2004] Can. T.S. No. 2. Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, December 10, 1984, [1987] Can. T.S.No. 36, Art. 3. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, 189 U.N.T.S. 137, Art. 33. CASES CITED FOLLOWED: Canadian Council for Refugees v.

Canada, 2008 FCA 229, [2009] 3 F.C.R. 136. APPLIED: White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; Canada (Minister of Citizenship andImmigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. (4th) 1; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331;Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Suresh v. Canada (Minister of Citizenship andImmigration), 2002 SCC 1, [2002] 1 S.C.R. 3; R. v. Nur, 2015 SCC 15, [2015] 1 S.C.R. 773; Lunyamila v. Canada (Public Safety andEmergency Preparedness), 2018 FCA 22, [2018] 3 F.C.R. 674.

DISTINGUISHED: Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700. CONSIDERED: Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1131; Canadian Council for Refugees v.Canada (Citizenship and Immigration), 2018 FC 396; Canadian Council for Refugees v. Canada (Immigration, Refugees andCitizenship), 2019 FC 285; West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal), 2018 SCC 22, [2018]1 S.C.R. 635; Matter of A-B-, 22 I&N 318 (A.G. 2018); Katz Group Canada Inc. v.

Ontario (Health and Long-Term Care), 2013 SCC64, [2013] 3 S.C.R. 810; Thorne’s Hardware Ltd. v. The Queen, (SCC), [1983] 1 S.C.R. 106, (1983), 143 D.L.R. (3d)577; Wildlands League v. Ontario (Natural Resources and Forestry), 2016 ONCA 741, sub nom. Wildlands League v. OntarioLieutenant Governor in Council, 134 O.R. (3d) 450; Singh v. Minister of Employment and Immigration, (SCC), [1985] 1S.C.R. 177, (1985), 17 D.L.R. (4th) 422; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Revell v. Canada (Citizenship andImmigration), 2019 FCA 262, [2020] 2 F.C.R. 355. REFERRED TO: Canadian Council for Refugees v.

Canada, 2007 FC 1262, [2008] 3 F.C.R. 606; Catalyst Paper Corp. v. North Cowichan (District),2012 SCC 2, [2012] 1 S.C.R. 5; Brant Dairy Co. v. Milk Commission of Ontario, (SCC), [1973] S.C.R. 131, (1972), 30

D.L.R. (3d) 559; Morton v. Canada (Fisheries and Oceans), 2015 FC 575 , 96 Admin. L.R. (5th) 1; Kreishan v. Canada (Citizenship and Immigration) , 2019 FCA 223 , [2020] 2 F.C.R. 299 ; Blencoe v. British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307; Newfoundland (Treasury Board) v. N.A.P.E. , 2004 SCC 66 , [2004] 3 S.C.R. 381. AUTHORS CITED Amnesty International Canada and Canadian Council for Refugees. Report “Contesting the Designation of the US as a Safe Third Country” (June 28, 2017).

Human Rights Watch, In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells , 28 February 2018. United Nations High Commissioner for Refugees, Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report - Universal Periodic Review: United States of America, October 2014. CONSOLIDATED APPLICATIONS for judicial review of decisions finding the applicants were ineligible to make refugee claims in Canada by operation of the Safe Third Country Agreement. Applications allowed.

APPEARANCES Andrew Brouwer , Heather Neufeld , Michael A. Bossin , Leigh Salsberg , Erin Simpson , Kate Webster , Prasanna Balasundaram , Joshua Blum and Jared Will for applicants. Martin Anderson , David Knapp , Charles J. Jubenville , Lucan Gregory and Laura Upans for respondents. SOLICITORS OF RECORD Legal Aid Ontario Refugee Law Office , Toronto, for applicants the Canadian Council of Refugees, Amnesty International and the Canadian Council for Churches. Downtown Legal Services , Toronto, for applicants ABC, DE, FG and Nedira Jemal Mustefa.

Jared Will & Associates , Toronto, for applicants Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Yassin Al Nahass. Deputy Attorney General of Canada for respondents. The following are the reasons for judgment and judgment rendered in English by McDonald J. : Table of Contents I. INTRODUCTION II. FACTUAL BACKGROUND ABC, DE, and FG (IMM-2977-17) Ms. Mustefa (IMM-2229-17) The Al Nahass/ Homsi Family (IMM-775-17) Public Interest Parties III. CONSOLIDATION ORDER IV. RELIEF SOUGHT V. NOTICE OF CONSTITUTIONAL QUESTION VI. THE EVIDENCE Applicants’ Evidence Respondents’ Evidence VII.

PRELIMINARY MATTERS Expert Evidence of Deborah Anker and Karen Musalo Ms. Mustefa’s Request to Make New Arguments VIII. ISSUES IX. STANDARD OF REVIEW

X. ANALYSIS Is

Section 159.3 of the Regulations Ultra Vires ? Statutory and Convention Provisions Applicants’ Submissions Designation Inconsistent with Statutory Purpose and Grant of Power Failure to Satisfy Conditions Precedent Analysis —Ultra Vires Does the STCA Violate

Section 7 of the Charter? Applicants’ Submissions Respondents’ Submissions Analysis Is the

Section 7 Infringement Justified Under

section 1 of the Charter ? Does the STCA Infringe

Section 15 of the Charter ? Should the Court Decline to Consider Ms. Mustefa’s Application ? XI. CERTIFIED QUESTIONS XII. CONCLUSION I. INTRODUCTION [Back to table of contents ] [ 1 ] The applicants challenge the validity and the constitutionality of the legislation implementing the Agreement between the Government of Canada and the Government of the United States of America For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries [December 5, 2002, [2004] Can. T.S. No. 2] (referred to as the “Safe Third Country Agreement” or “STCA”).

The applicants allege that by returning ineligible refugee claimants to the United States (U.S.), Canada exposes them to risks in the form of detention, refoulement , and other violations of their rights contrary to the 1951 United Nations Convention Relating to the Status of Refugees , 28 July 1951, [1969] Can. T.S. No. 6, 189 U.N.T.S. 137 (Refugee Convention or RT) and contrary to the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment [December 10, 1984, [1987] Can. T.S.

No. 36] (CAT, collectively referred to as the Conventions). [ 2 ] The Safe Third Country Agreement is given effect by paragraph 101(1) (

e) of the Immigration and Refugee Protection Act , S.C. 2001 c. 27 ( IRPA ), and by

section 159.3 of the Immigration and Refugee Protection Regulations , SOR/2002-227 ( IRPR or the Regulations ) which in 2004 designated the U.S. a “safe third country”. [ 3 ] The Safe Third Country Agreement operates by deeming those who arrive at a Canada land Port of Entry (POE) from the U.S. ineligible to make a refugee claim in Canada. These ineligibility provisions apply to a narrow category of refugee claimants —only those arriving from the U.S. at a Canada land POE.

Claimants arriving from the U.S. by air, by sea or between land POEs, are eligible to have their refugee claims referred to the Refugee Protection Division (RPD) for assessment. [ 4 ] Each of the individual applicants, who are citizens of El Salvador, Ethiopia, and Syria, arrived at a Canadian land POE from the U.S. and sought refugee protection. The applicants, ABC and her children, are from El Salvador. Their refugee claim relates to gang violence and gender-based persecution. The applicant, Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the U.S.

The Homsi /Al Nahass applicants are a Muslim family from Syria who left the U.S. following the issuance of the first travel ban by the U.S. government. [ 5 ] While their individual situations vary, each of the applicants sought refugee protection in Canada fearing persecution in their home country. However, because they arrived from the U.S. at a land POE, the applicants were ineligible to make a refugee claim in Canada by operation of the STCA. [ 6 ] Each of the applicants seek judicial review of the ineligibility decisions.

ABC and her daughters (DE and FG) obtained a stay of their removal from Canada pending the determination of this judicial review application. The Homsi/Al Nahass family obtained Temporary Resident Permits (TRPs). Ms.

Mustefa was returned to the U.S. where she was immediately imprisoned. [ 7 ] The Canadian Council for Refugees (CCR), Amnesty International (AI), and, Canadian Council of Churches (CCC) were granted the right to participate in these applications as public interest parties. [ 8 ] The applicants challenge the STCA on two fronts. [ 9 ] First, they argue that the Canadian government failed in its duty to review the ongoing designation of the U.S. as a “safe third country” as required by subsections 102(2) and 102(3) of the IRPA , and therefore the legislation and regulations that make the STCA law are ultra vires.

They argue that the treatment of asylum-seekers in the U.S. is not in keeping with the spirit or the objective of the STCA. For the reasons outlined below, I have concluded that the legislation enacting the STCA is not ultra vires .

[ 10 ] Second, the applicants argue that the legislation implementing the STCA is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] ( Charter ). For the reasons outlined below, I have concluded that the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by U.S. authorities. I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by

section 7 of the Charter . I further conclude that

section 1 of the Charter does not save the

section 7 violations from being unconstitutional. II. FACTUAL BACKGROUND [Back to table of contents ] ABC, DE, and FG (IMM-2977-17) [Back to table of contents ] [ 11 ] The applicant ABC and her daughters DE and FG are citizens of El Salvador. On April 3, 2013, ABC was raped by MS-13 gang members in her home when they demanded money and threatened her with a gun. They told ABC they would kill her, and her daughters, if she went to the police. ABC became pregnant as a result of this rape. While she was pregnant, the gang members showed up at her house and threatened to kill her.

During this period, men also followed and accosted her daughters. At one point, an unknown man stopped them while they were walking to school and asked about their father. One man told them that if their father “did not show his face” the men would “get even by taking it out on the girls.” [ 12 ] In November 2016, MS-13 members again entered ABC’s home and pointed a gun at her head, demanded money, and threatened to kill her and her daughters. After this incident, ABC determined that she and her daughters were not safe in El Salvador and on November 10, 2016, she left El Salvador with her daughters.

They arrived in the US on November 26, 2016. [ 13 ] Upon arrival in the U.S., ABC and her daughters were held at a detention centre and advised that they were under removal proceedings. Following their release they stayed with family in Mississippi. In December 2016, they travelled to Buffalo, New York, where they stayed at a refugee shelter. [ 14 ] In January 2017, ABC and her daughters arrived at the Fort Erie, Ontario, POE to make a refugee claim in Canada. The Canada Border Services Agency (CBSA) officer advised them to withdraw their claim as they would be found ineligible to make a claim under STCA.

ABC and her daughters returned to the refugee shelter in the U.S. [ 15 ] On July 5, 2017, ABC and her daughters again travelled to the Fort Erie POE to make a claim for refugee protection in Canada. The CBSA officer determined that they were ineligible pursuant to paragraph 101(1) (

e) of the IRPA due to the operation of the STCA. [ 16 ] With the assistance of legal counsel, ABC filed this application for judicial review and filed a motion for a stay of their removal from Canada. On July 6, 2017, I granted an order staying their removal from Canada. Ms. Mustefa (IMM-2229-17) [Back to table of contents ] [ 17 ] Ms. Mustefa is an Ethiopian national who left the country when she was 11 years old for medical treatments in the U.S. She entered the U.S. on a visitor’s visa as an unaccompanied minor and stayed with her uncle Gabriel Mustefa while undergoing medical treatments.

In the summer of 2008, Ms. Mustefa went to live with her aunt in Georgia where she remained until she finished high school in 2015. Ms. Mustefa planned to pursue further education in the U.S. but she could not obtain proper documentation having arrived in the U.S. after the cut off date to apply under the Deferred Action for Childhood [Arrivals] program. [ 18 ] Around this same time in Ethiopia oppressive acts against the Oromo, Ms. Mustefa’s ethnic group, were escalating. In 2016 and 2017, the Oromo were subject to mass arrests and held without charges or trials.

The government dispatched the military to Oromo regions leading to the death and disappearance of many Oromo youth. In October 2016 Ethiopian government forces opened fire into a crowd of people attending a cultural festival and the Ethiopian government declared a state of emergency in effect until August 2017. [ 19 ] Due to the situation in Ethiopia, and not being able to seek asylum in the U.S., on April 10, 2017, Ms. Mustefa arrived at the POE in Saint-Bernard-de-Lacolle, Quebec, and made a claim for refugee protection.

She was questioned at the POE for approximately 30 hours and was informed on April 11, 2017, that she was ineligible for refugee protection pursuant to paragraph 101(1) (

e) of the IRPA . [ 20 ] CBSA officers returned Ms. Mustefa to the U.S. She was placed in detention at the Clinton Country Correctional Facility where she was held in solitary confinement for the first week (pending a tuberculosis test) and released on a bond on May 9, 2017. The Al Nahass/ Homsi Family (IMM-775-17) [Back to table of contents ] [ 21 ] The adult female applicant, Reda Yassin Al Nahass, is a citizen of Syria.

The other applicants are her adult son, Mohammad Majd Maher Homsi, who was born in Syria, and her young son and daughter, Karam Maher Homsi and Hala Maher Homsi, who were both born in Saudi Arabia. Ms. Al Nahass lived in Syria until 2003 when the family moved to Saudi Arabia. The family returned to Syria regularly until the war began in 2011. [ 22 ] In 2015, Ms. Al Nahass, travelled to Syria for medical treatment when she was kidnapped, physically attacked and threatened with sexual violence. Her family was able to secure her release. While the family was in the U.S. in November 2015, Ms.

Al Nahass’s husband lost his job in Saudi Arabia, which put her family’s status in Saudi Arabia in jeopardy, as they were dependent on her husband’s employer-sponsored residency permit. [ 23 ] Ms. Al Nahass started the asylum process in the U.S. in the spring of 2016. However, she became concerned with the increasing public hatred expressed toward Muslim and Arab people and following the passage of Executive Order 13769 [60 Fed. Reg. 8977 (2017) (U.S.)], the so-called “Muslim Ban”. [ 24 ] On February 2, 2017, Ms. Al Nahass, and her children tried to enter Canada by walking across the border at Roxham Road

between New York and Quebec. As they approached the border, a CBSA officer told them they would be arrested if they crossed into Canada. They were advised to go back to the U.S. Upon return to the U.S. they were stopped by U.S. authorities and put in separate police cars. They were fingerprinted and questioned. During this time, Ms. Al Nahass was forced to take off her hijab and was photographed. An hour later, they were taken to Saint-Bernard-de-Lacolle, Quebec, POE. [ 25 ] On February 3, 2017, Ms. Al Nahass was told she and her children were ineligible because they were attempting to enter Canada from the U.S.

While Ms. Al Nahass was at Saint-Bernard-de-Lacolle, she managed to contact a lawyer who filed an emergency stay of removal application on behalf of the family. The stay was granted, following which the family was granted Temporary Resident Permits (TRPs) allowing them to remain in Canada. The family has since been granted permanent resident status.

Public Interest Parties [Back to table of contents ] [ 26 ] On December 11, 2017, Justice Diner granted public interest standing to the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches on the grounds that the application for judicial review “raises a serious justiciable issue in which the Organizations have a genuine interest” ( Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2017 FC 1131 , at paragraph 74 ). III.

CONSOLIDATION ORDER [Back to table of contents ] [ 27 ] On April 12, 2018, Justice Diner ordered these three applications be consolidated and heard together ( Canadian Council for Refugees v. Canada (Citizenship and Immigration) , 2018 FC 396 , at paragraph 39 ). IV. RELIEF SOUGHT [Back to table of contents ] [ 28 ] In their applications for judicial review, the applicants each phrase the requested relief slightly differently, however, they all seek the following common relief: 1.

An order that the decisions of the officers be set aside and the individual applicants’ claims for refugee protection be found eligible and referred to the Refugee Protection Division for determination; 2. A declaration that

section 159.3 of the Immigration and Refugee Protection Regulations is ultra vires or otherwise unlawful because the designation of the United States of America is not and/or was not at the time of the decision under review in conformity with paragraph 102(1) (a), subsections 102(2) and 102(3) of the Immigration and Refugee Protection Act ; 3. A declaration that

section 159.3 of the Regulations is inconsistent with Canada’s international obligations under the Refugee Convention and the Convention Against Torture; 4. A declaration that

section 159.3 of the Regulations is of no force or effect pursuant to

section 52 of the Constitution Act, 1982 , because it violates

section 7 and/or subsection 15(1) of the Canadian Charter of Rights and Freedoms ; 5. A declaration that paragraph 101(1) (

e) of the IRPA is of no force or effect pursuant to

section 52 of the Constitution Act, 1982 , because it violates

section 7 and/or subsection 15(1) of the Canadian Charter of Rights and Freedoms . V. NOTICE OF CONSTITUTIONAL QUESTION [Back to table of contents ] [ 29 ] The applicants served a notice of constitutional question pursuant to

section 57 of the Federal Courts Act , R.S.C., 1985, c. F-7 , on the Attorney General of Canada and each of the Attorneys General for the Provinces and Territories. Apart from the Attorney General of Canada, none of the Attorneys General responded. The notice of constitutional question stated: The Applicants intend to question the constitutional validity of the combined effect of s. 101(1) (

e) of the Immigration and Refugee Protection Act (“the IRPA ”) and s. 159.3 of the Immigration and Refugee Protection Regulations (“the Regulations ”). VI. THE EVIDENCE [Back to table of contents ] [ 30 ] The parties filed extensive evidentiary records including affidavits, reports, expert opinions and transcripts. Below is a

summary of the evidence. Applicants’ Evidence [Back to table of contents ] [ 31 ] The applicants filed affidavits from the following individuals: • The applicant ABC, whose affidavits were sworn June 29, 2017, September 8, 2017, and December 15, 2017. • The applicant, Nedeira Mustefa, whose affidavit was sworn September 14, 2017. • The applicant, Reda Al Nahass, whose affidavit was sworn April 29, 2017. • Clare Long, whose affidavit was sworn June 24, 2018, is a Senior Researcher at the U.S.

Program of Human Rights Watch. • Janet Dench, whose affidavits were sworn September 7, 2017, and June 27, 2018, is the Executive Director of the Canadian Council for Refugees. • Christina Fialho, whose affidavit was sworn June 25, 2018, is the co-Executive Director of Freedom for Immigrants. • Audrey Macklin, whose affidavit was sworn on June 23, 2018, is a Professor at the University of Toronto and the Director of the

Centre for Criminology and Sociolegal Studies. • Gloria Nafziger, whose affidavits were sworn December 18, 2017, and June 26, 2018, is the Refugee Coordinator at Amnesty International Canada. • Ksenija Novakovic, whose affidavit was sworn on June 29, 2018. Ms. Novakovic worked at Downtown Legal Services under the supervision of Prasanna Balasundaram, counsel for ABC, DE, FG and Ms.

Mustefa. • Carol Anne Donohue, whose affidavit was sworn August 30, 2018, is an immigration lawyer practising in Pennsylvania, U.S.A. • Ryan Witmer, whose affidavit was sworn July 24, 2018, is a lawyer practising immigration law in Buffalo, U.S.A. • Timothy Warden-Hertz, whose affidavit was sworn August 30, 2018, is the Directing Attorney of the Tacoma office of the Northwest Immigration Rights Project. • Ruby Robinson, whose affidavit was sworn June 20, 2018, is a co-managing attorney at the Michigan Immigrant Rights Centre. • Ramon Irizarry, whose affidavit was sworn June 25, 2018, is the Supervising Immigration Attorney at the Volunteer Lawyers Project of the Erie County Bar Association. • Nadege Jean-Mardy, whose affidavit was sworn June 25, 2018, founded Action d’Entraide Multifonctionnelle du Canada and currently serves as Director General of the organization. • Sarah Alarabi, whose affidavit was sworn on June 17, 2018, describes her experience seeking refugee protection in Canada under the family member exception to the STCA. • H.I., whose affidavit was sworn July 31, 2018, attempted to seek refugee protection in Canada, but was found ineligible under the STCA. • J.K., whose affidavit was sworn November 10, 2017, and was translated by Carmen Maria Rey on November 13, 2017.

J.K. tried to make a refugee claim in Canada but was told by Canadian officers that she was “not in a good place to cross”. • L.M., whose affidavit was sworn on November 10, 2017, attempted to seek refugee protection in Canada, but was found ineligible under the STCA. • N.O., whose affidavit was sworn July 25, 2018, attempted to seek refugee protection in Canada in July 2017, but was found ineligible under the STCA. • P.Q., whose affidavit was sworn April 20, 2018, made a refugee claim at a Canadian border crossing in May 2015. • R.S., whose affidavit was sworn July 25, 2018, and translated by Suu Yang on July 27, 2018, attempted to go to a Canadian border crossing in March 2017, but was stopped by American police officers. • T.U., whose affidavit was sworn July 31, 2018, made a refugee claim in February 2017 at a Canadian Port of Entry. • V.W., whose affidavit was sworn April 26, 2018, attempted to enter Canada but she was returned to the United States and detained. • X.Y., whose affidavit was sworn on an unknown date, attempted to enter Canada at a Canadian Port of Entry but was told he was not able to make a refugee claim because of the STCA. • Z.Z., whose affidavit was sworn on an unknown date, made a refugee claim at the Canadian border in October 2017. [ 32 ] The applicants rely upon the affidavit evidence of the following experts: • Professor Deborah Anker, whose affidavits were sworn October 6, 2017, and June 26, 2018, is a professor at Harvard Law School and the Founder and Director of the Harvard Law School Immigration and Refugee Clinical Program. • Professor Karen Musalo, whose affidavits were sworn September 22, 2017, and June 25, 2018, is a professor at the University of California Hasting College of Law. • Elizabeth Kennedy, whose affidavit was sworn August 7, 2018, is scholar with an expertise in country conditions in El Salvador, Honduras and Guatemala. • Anwen Hughes, whose affidavits were sworn December 6, 2017, and June 26, 2018, is the Deputy Legal Director of the Refugee Representation Program at Human Rights First. • Lenni Beth Benson, whose affidavit was sworn June 25, 2016, is a professor at New York Law School and is an expert in U.S. immigration law with a further expertise in the rights of children and their ability to seek protection under U.S. asylum law and other provisions of the U.S.

Immigration and Nationality Act [8 U.S.C. (2006)]. • James C. Hathaway, whose affidavit was sworn June 27, 2018, is a professor of law at the University of Michigan, specializing in international and comparative refugee law. • Abed Ayoub, whose affidavit was sworn June 26, 2018, is the National Legal Director of the American-Arab Anti-Discrimination Committee.

• Katharina Obser, whose affidavits were sworn December 4, 2017, and June 25, 2018, is a Senior Policy Advisor in the Migrant Rights and Justice Program of the Women’s Refugee Commission. • Jaya Ramji-Nogales, whose affidavit was sworn August 27, 2018, is a law professor at Temple University who has conducted several empirical studies of asylum adjudication in the United States.

Respondents’ Evidence [Back to table of contents ] [ 33 ] The respondents rely upon the following affidavit evidence: • Bruce Scholfield, whose affidavit was sworn October 9, 2018, is a former employee of the Department of Citizenship and Immigration (now Immigration Refugees and Citizenship Canada). • André Baril, whose affidavit was sworn October 11, 2018, is the Senior Director of Refugee Affairs with the Department of Immigration Refugees and Citizenship. • Matthew Dan, whose affidavit was sworn October 12, 2018, is the Assistant Director of the Department of Immigration, Refugees and Citizenship Canada’s Irregular Migration Policy Hub within the Refugee Affairs Branch. • Sharon Spicer, whose affidavit was sworn October 12, 2018, is the Director of Inland Enforcement Operations and Case Management Division for the Canadian Border Services Agency. • Alexandre Bilodeau, whose affidavit was sworn October 11, 2018, is the Assistant Director in the Data Management and Reporting Division of the Research and Evaluation Branch. • Daniel Badour, whose affidavit was sworn October 11, 2018, is the Director of the Asylum Seeker Task Force with the Canada Border Services Agency. • Laura Soskin, whose affidavit was sworn October 12, 2018, is a Paralegal with the Department of Justice in Toronto. • Rebecca Louis, whose affidavit was sworn October 9, 2018, was an articling student with the Department of Justice at the time she sworn her affidavit. [ 34 ] The respondents rely upon the following Expert affidavits: • Stephen Yale-Loerh, whose affidavit was sworn October 12, 2018, is a Professor at Cornell Law School and is counsel at Miller Mayer, LLP, in Ithaca, New York where he practises immigration law. • Kay Hailbronner, whose affidavit was sworn October 10, 2018, is a Professor Emeritus of Public Law, Public International Law and European Law at the University of Konstanz in Germany.

VII. PRELIMINARY MATTERS [Back to table of contents ] [ 35 ] There are two preliminary matters. One is the respondents’ objection to the Court considering the expert evidence of Professors Anker and Musalo. The other is the request by the applicant Ms. Mustefa to raise a new procedural fairness argument. Expert Evidence of Deborah Anker and Karen Musalo [Back to table of contents ] [ 36 ] At the opening of their submissions, the respondents reiterated their objections to the Court considering the expert evidence of Professor Anker.

The respondents argue that Professor Anker’s public advocacy statements on the issues raised in these applications affect the objectivity of her evidence. The respondents do not identify specific statements or specific paragraphs in her affidavits that they object to and seek to strike, but rather they argue that her evidence overall lacks objectivity. [ 37 ] Professor Anker is a law professor at Harvard University. She is the co-founder of the Harvard Immigration and Refugee Clinical Program and has authored a treatise on U.S. asylum law. She is offered as an expert on U.S. asylum law.

The respondents do not dispute her qualifications. Their objection arises from the public positions she has taken in criticizing Canada’s continued adherence to the STCA. They point to a radio interview and a letter sent by Professor Anker to the Prime Minister encouraging Canada to repeal the STCA with the U.S. The respondents argue that, in so doing, she has engaged in advocacy and therefore cannot be considered an objective witness. [ 38 ] The objections to Professors Anker’s evidence were addressed in a motion heard on February 21, 2019.

At that time, I dismissed the respondent’s motion ( Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) , 2019 FC 285 ( CCR 2019 ), at paragraph 36 ). I concluded that Professor Anker’s comments in the media about the Canadian refugee system were not the areas for which she was being tendered as an expert witness. Her expertise is the U.S. asylum system. As a result, her expert evidence can be considered apart from her personal views ( CCR 2019 , at paragraph 36).

I further noted that any issues with the objectivity of her evidence would go to the weight of her evidence rather than its admissibility ( CCR 2019 , at paragraph 37). [ 39 ] With respect to Professor Musalo, the respondents also argue that she has made public statements in her role with the Centre for Gender and Refugee Studies that are inconsistent with the statements contained in her affidavits and therefore her evidence is not reliable.

Again, the respondents do not dispute her qualifications and do not identify specific statements or paragraphs in her affidavits that they seek to strike, but argue that the general content of her affidavits does not align with her public statements. [ 40 ] Having had the opportunity to consider the evidence of both experts in the context of the issues raised on these applications, and with the benefit of a full record from all parties, I maintain my position to allow their evidence.

Given that the respondents have not identified specific portions of the evidence that they seek to strike, it is not appropriate to strike the evidence in its entirety. Professor

Anker has engaged in public lobbying with respect to the plight of asylum-seekers. On these applications, she is offered as an expert on U.S. asylum law and international refugee law. Professor Anker’s evidence as contained in her affidavits of October 6, 2017 and June 26, 2018, is accepted for the factual detail provided. Her public statements and her opinion regarding the appropriateness of the STCA are irrelevant. [ 41 ] The respondents’ objection to Professor Musalo’s evidence is weaker.

They claim that the public statements of her organization regarding the likelihood of success of asylum claims in the U.S. system are in direct contradiction to the evidence provided in her affidavits. Specifically, the respondents claim that the Professor’s website suggests that asylum claims can be successfully pursued, whereas in her affidavits (September 22, 2017, and June 25, 2018) she claims that the likelihood of success is low. The challenge with how the respondents have raised their objections to this evidence, is that they fail to specify what portions or what statements they take issue with.

I agree with the respondents that broad categorical statements on the success of asylum claims within the U.S. system is irrelevant and I will therefore disregard these statements. [ 42 ] Both Professors Anker and Musalo signed the expert witness certificate under the Federal Courts Rules [SOR/98-106 ] which specifically states they “have read the Code of Conduct for Expert Witnesses set out in the

schedule to the Federal Courts Rules and agree to be bound by it.” The Code of Conduct provides: 1 An expert witness named to provide a report for use as evidence, or to testify in a proceeding, has an overriding duty to assist the Court impartially on matters relevant to his or her area of expertise. 2 This duty overrides any duty to a party to the proceeding, including the person retaining the expert witness. An expert is to be independent and objective. An expert is not an advocate for a party. [ 43 ] In White Burgess Langille Inman v.

Abbott and Haliburton Co. , 2015 SCC 23 , [2015] 2 S.C.R. 182 ( White Burgess ), the Supreme Court of Canada held that the role of an expert is to assist the Court, not to advocate. The Court further noted that experts “have a special duty to the court to provide fair, objective and non-partisan assistance” ( White Burgess , at paragraph 2). [ 44 ] Having considered Professors Anker and Musalo’s evidence in the full context of these applications, I accept their evidence. I acknowledge that they are engaged in broader forms of advocacy in support of asylum causes.

However, for the present applications, their evidence was based on their professional views of the U.S. asylum system and how it functions, or fails to function. It is in that regard that their evidence and opinions are of assistance to the Court. [ 45 ] Given the failure of the respondents to clearly articulate their specific objections, and considering the test outlined by the Supreme Court in White Burgess , I accept their evidence subject to the qualifications noted. Ms. Mustefa’s Request to Make New Arguments [Back to table of contents ] [ 46 ] At the hearing, Ms.

Mustefa’s lawyers requested leave to amend her application to make new procedural fairness arguments. I declined this request. As I stated at the hearing, these applications had been ongoing for a number of years, accordingly, there was ample time to identify and raise these arguments earlier. In my view, it was not fair to the respondents, or in the interests of justice, to allow Ms. Mustefa to raise procedural fairness arguments at the hearing of this judicial review application. VIII. ISSUES [Back to table of contents ] [ 47 ] The following are the issues for determination: A. Is

section 159.3 of the Regulations ultra vires ? B. Does the STCA infringe

section 7 of the Charter ? C. Is the infringement justified under

section 1 of the Charter ? D. Does the STCA infringe

section 15 of the Charter ? E. Should the Court decline to consider Ms. Mustefa’s application? F. Do certified questions arise? IX. STANDARD OF REVIEW [Back to table of contents ] [ 48 ] After hearing these applications, the Supreme Court released its decision in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , 441 D.L.R. (4th) 1 ( Vavilov ). Accordingly, I invited the parties to make post-hearing submissions on the impact of Vavilov on the applicable standard of review. [ 49 ] The applicants assert that Vavilov strengthens their position that

section 159.3 of the Regulations is ultra vires for two reasons. First, because the Supreme Court held that external constraints limit the range of reasonable outcomes of administrative decisions ( Vavilov , at paragraph 90 ). Second, they argue that, even when applying a deferential standard,

interpretations that are contrary to the legislative purpose of the grant of power, contrary to the overarching purpose of the Act , or contrary to Canada’s international obligations will necessarily be unreasonable ( Vavilov , at paragraphs 114 and 120 ). [ 50 ] The respondents say that Vavilov does not change their position on the vires issue, because, according to the respondents, the Court cannot consider evidence that post-dates the promulgation of

section 159.3 of the Regulations . Therefore, the standard of review question is irrelevant as the issue is resolved before it is necessary to consider the appropriate standard of review. [ 51 ] Taking these positions into consideration, and the direction provided in Vavilov , in my view, the standard of review for the vires

considerations is reasonableness. Vavilov , at paragraph 68 states: Reasonableness review does not give administrative decision makers free rein in interpreting their enabling statutes, and therefore does not give them licence to enlarge their powers beyond what the legislature intended. Instead, it confirms that the governing statutory scheme will always operate as a constraint on administrative decision makers and as a limit on their authority. Even where the reasonableness standard is applied in reviewing a decision maker’s

interpretation of its authority, precise or narrow statutory language will necessarily limit the number of reasonable

interpretations open to the decision maker — perhaps limiting it [to] one. [Emphasis in original.] [ 52 ] The issue of whether

section 159.3 of the Regulations and paragraph 101(1) (

e) of the IRPA violate the Charter will be considered on a correctness standard ( Vavilov , at paragraph 57 ). X. ANALYSIS [Back to table of contents ] Is

Section 159.3 of the Regulations Ultra Vires ? [Back to table of contents ] Statutory and Convention Provisions [Back to table of contents ] [ 53 ] The relevant provisions of the IRPA are: 3 (1) … Application

(3) This Act is to be construed and applied in a manner that … (

d) ensures that decisions taken under this Act are consistent with the Canadian Charter of Rights and Freedoms , including its principles of equality and freedom from discrimination and of the equality of English and French as the official languages of Canada; … (

f) complies with international human rights instruments to which Canada is signatory. … Preparation of report 44

(1) An officer who is of the opinion that a permanent resident or a foreign national who is in Canada is inadmissible may prepare a report setting out the relevant facts, which report shall be transmitted to the Minister. … Ineligibility 101

(1) A claim is ineligible to be referred to the Refugee Protection Division if … (

e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or … Regulations 102

(1) The regulations may govern matters relating to the application of sections 100 and 101, may, for the purposes of this Act , define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions (

a) designating countries that comply with

Article 33 of the Refugee Convention and

Article 3 of the Convention Against Torture; … Factors

(2) The following factors are to be considered in designating a country under paragraph (1)(a): (

a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (

b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (

c) its human rights record; and

(

d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. Review

(3) The Governor in Council must ensure the continuing review of factors set out in subsection (2) with respect to each designated country. [ 54 ]

Section 159.3 of the IRPR states: Designation — United States 159.3 The United States is designated under paragraph 102(1) (

a) of the Act as a country that complies with

Article 33 of the Refugee Convention and

Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1) (

e) of the Act . [ 55 ]

Article 33 of the Refugee Convention provides:

Article 33 Prohibition of Expulsion or Return (“Refoulement”) 1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion. 2. The benefit of the present provision may not, however, be claimed by a refugee whom there are reasonable grounds for regarding as a danger to the security of the country in which he is, or who, having been convicted by a final judgment of a particularly serious crime, constitutes a danger to the community of that country. [ 56 ]

Article 3 of the Convention against Torture states:

Article 3 1. No State Party shall expel, return (“ refouler ”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture. 2. For the purpose of determining whether there are such grounds, the competent authorities shall take into account all relevant considerations including, where applicable, the existence in the State concerned of a consistent pattern of gross, flagrant or mass violations of human rights. [ 57 ] These provisions were considered extensively in Canadian Council for Refugees v.

Canada , 2007 FC 1262 , [2008] 3 F.C.R. 606 ( CCR 2007 ) and Canadian Council for Refugees v. Canada , 2008 FCA 229 , [2009] 3 F.C.R. 136 ( CCR 2008 ). Applicants’ Submissions [Back to table of contents ] [ 58 ] The applicants argue that

section 159.3 of the Regulations is ultra vires because the ongoing designation of the U.S. as a safe third country is inconsistent with the statutory purpose and the statutory grant of power. Further, they argue that the statutory conditions precedent for the ongoing designation of the U.S. as a safe third country have not been satisfied. Designation Inconsistent with Statutory Purpose and Grant of Power [Back to table of contents ] [ 59 ] The applicants submit that developments in the law since the F.C.A. decision in CCR 2008 allow this Court to reconsider the vires issue.

They rely upon West Fraser Mills Ltd. v. British Columbia (Workers’ Compensation Appeal Tribunal) , 2018 SCC 22 , [2018] 1 S.C.R. 635 ( West Fraser Mills ) (at paragraphs 10 and 12 ) and Catalyst Paper Corp. v.

North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 (at paragraph 12 ) to argue that a regulation is ultra vires when it is “‘inconsistent with the objective of the enabling statute or the scope of the statutory mandate’” ( West Fraser Mills , at paragraph 12). [ 60 ] According to the applicants, based on the evidence of violations by the U.S. of the Refugee Convention, the U.S. is not a safe third country.

They rely upon the following evidence: • “Proposal for a Targeted Review of the US as a Safe Third Country” (Exhibit 8 to the cross-examination of André Baril) (“Proposal for a Targeted Review”). • Submission by the United Nations High Commissioner for Refugees For the Office of the High Commissioner for Human Rights’ Compilation Report – Universal Periodic Review: United States of America , UNHCR, October 2014 (Exhibit 10 to the cross- examination of André Baril) (Universal Periodic Review). • Memorandum to Minister Hussein from Deputy Minister, “Amnesty International and Canadian Council for Refugees Report Contesting the Designation of the US as a Safe Third Country” (June 28, 2017) (Exhibit 10 to the cross-examination of André Baril) (Contesting the Designation of the US as a Safe Third Country). • Human Rights Watch, In the Freezer: Abusive Conditions for Women and Children in US Immigration Holding Cells [28 February 2018] (Exhibit 30 to the cross-examination of André Baril) (In the Freezer). • “Memorandum to the Assistant Deputy Minister—U.S.

Development pertaining to domestic and gang violence related to asylum

claims” (Exhibit 29 to the cross-examination of André Baril). • “Domestic Gang Violence Claims in the US”, September 2018 (Exhibit 20 to the cross-examination of André Baril). • “Memorandum to the Assistant Deputy Minister—U.S. Development pertaining to domestic and gang violence related to asylumclaims”,

Summary (Exhibit 23 to the cross-examination of André Baril). • “UNHCR Amicus brief on asylum policy developments in the US” (Exhibit 24 to the cross-examination of André Baril) (UNHCRAmicus brief). • Emails from Dean Barry with IRCC [Immigration, Refugees and Citizenship Canada] Reports and Flash Reports, June 7, 2018—November 26, 2018 (Exhibit 52 to the cross-examination of André Baril). [61] The applicants argue that based upon these reports, Canadian officials were aware of the U.S. practice of detaining and punishingasylum-seekers in contravention of the Refugee Convention.

They point out that the detention conditions were reported to the Minister inthe document “Contesting the Designation of the US as a Safe Third Country” prepared by Amnesty International and The CanadianCouncil for Refugees.

The “Proposal for a Targeted Review” provided information on the U.S. policy of separating parents from theirchildren in detention. “In the Freezer” confirms that routine detention in inhumane conditions was continuing in the U.S. into February2018. [62] Information contained in the “Universal Periodic Review” and the “Contesting the Designation of the US as a Safe ThirdCountry” reports provided the Canadian government with information on the impact of the one-year bar, the U.S. zero tolerance policyand the risk of refoulement. In the U.S., asylum seekers must make their claim within a year of entering the U.S.

If this deadline ismissed, claimants must show it is more likely than not that they will be persecuted because of a protected ground, which is a higherstandard than the usual standard of having a well-founded fear of persecution. The applicants contend that the shift in the burden afterthe one-year deadline is missed means that people with legitimate claims will likely be refouled because they do not reach the new(higher) threshold. [63] The applicants also argue that the adoption of the “zero tolerance” policy for illegal entry was an explicit attempt to determigration, including asylum seekers.

They point to the February 4, 2019 cross-examination of Prof.

Yale-Loerh who agreed that familyseparation and detention are penalties being imposed to deter migrants from entering the U.S. [64] Furthermore, the applicants argue that “UNHCR Amicus brief” demonstrates that following the decision in the Matter of A-B-[22 I&N 318 (A.G. 2018)], it became more difficult to establish domestic and/or gang grounds for refugee protection in the U.S. [65] The applicants submit that the Canadian government had knowledge that the U.S. asylum practices and policies are not inkeeping with the UNHCR Guidelines, and therefore the U.S. is not a “safe third county” within the meaning of the statutory purpose.

Failure to Satisfy Conditions Precedent [Back to table of contents] [66] The applicants submit that the factors outlined in subsections 102(2) and (3) of the IRPA are conditions precedent that have notbeen met. They rely upon the decisions in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3S.C.R. 810 (Katz) and Thorne’s Hardware Ltd. v. The Queen, (SCC), [1983] 1 S.C.R. 106, (1983), 143 D.L.R. (3d) 577(Thorne’

s) to argue that the regulation, as subordinate legislation, is invalid as it fails to satisfy the applicable statutory conditions. Theapplicants argue that subsection 102(3) of the IRPA mandates a continuing review of the designation factors and requires the Minister toform an opinion that the safe third country designation should be maintained. [67] Initially, by the 2004 Order in Council (OIC) [P.C. 2004-1158 (October 12, 2004)], the review responsibility was delegated tothe Minister of Citizenship and Immigration. In his affidavit, Mr.

Baril explains that pursuant to the 2004 OIC, reviews were conductedevery 5 years (2009 and 2014). The 2015 OIC [P.C. 2015-0809 (June 11, 2015)] marked a change in the review responsibility. The 2015OIC states: 1.

(1) The Minister of Citizenship and Immigration must undertake a review, on a continual basis, of the factors set out in subsection102(2) of the Immigration and Refugee Protection Act with respect to the United States, as a country designated under paragraph 102(1)(

a) of that Act and referred to in

section 159.3 of the Immigration and Refugee Protection Regulations, by monitoring those factors on aregular basis. The Minister must report to the Governor in Council on that review when the circumstances warrant. [68] The applicants allege that this change in review responsibility was an unlawful sub-delegation of the review authority (BrantDairy Co. v. Milk Commission of Ontario, (SCC), [1973] S.C.R. 131, (1972), 30 D.L.R. (3d) 559; Morton v. Canada(Fisheries and Oceans), 2015 FC 575, 96 Admin.

L.R. (5th) 1, at paragraphs 82–83). [69] On monitoring, the applicants argue that the evidence demonstrates that there was a lack of meaningful analysis of the U.S.compliance with the Refugee Convention and international human rights standards. According to the applicants, in the absence of suchanalysis, the Minister, and the GIC [Governor in Council], were not provided with the information necessary to reassess the designation. [70] The applicants say that the F.C.A. in CCR 2008, did not consider whether subsection 102(3) created a condition precedent to thevalidity of the ongoing designation.

They argue that the F.C.A. did not make any finding on whether ongoing review is actually required.They argue that the F.C.A. did not find subsequent factors are irrelevant, and that, as such, the F.C.A. has not decided the vires issue theyraise now. The applicants further note that, unlike in CCR 2008, they are seeking a remedy for the alleged failure to review (see: CCR2008, at paragraph 83). Analysis—Ultra Vires [Back to table of contents] [71] I begin the analysis of this issue by reference to the following statement from the F.C.A. in CCR 2008, at paragraph 57:

An attack aimed at the vires of a regulation involves the narrow question of whether the conditions precedent set out by Parliament for the exercise of the delegated authority are present at the time of the promulgation…. [ 72 ] Further, at paragraph 89, the F.C.A. states: There is one key date that the applications Judge had to be mindful of: December 29, 2004, when the Regulations came into force, the last relevant date for the assessment of the vires issue.

Regardless of the conditions precedent which one wishes to apply, the vires of the Regulations could not be assessed on the basis of facts, events or developments that are subsequent to the date of the promulgation. [ 73 ] On the decision to designate the U.S., the F.C.A. found that “[o]nce … the GIC has given due consideration to these four factors, and formed the opinion that the candidate country is compliant with the relevant Articles of the Conventions, there is nothing left to be reviewed judicially” ( CCR 2008 , at paragraph 78). [ 74 ] Considering the clear statements from the F.C.A. in CCR 2008 , and notwithstanding the able arguments of counsel for the applicants, I am bound by CCR 2008 .

While the applicants have somewhat reframed the vires arguments on these judicial review applications, in my view, the F.C.A. decision is a full answer to the vires argument even as the applicants now present them. [ 75 ] I have considered the cases relied upon by the applicants ( Katz , Thorne’s , Wildlands League v. Ontario (Natural Resources and Forestry) , 2016 ONCA 741 [ sub nom. Wildlands League v.

Ontario Lieutenant Governor in Council ] , 134 O.R. (3d) 450), however I do not read these cases as opening the door for this Court to take post-promulgation facts into consideration to determine the vires of the regulation. These cases specify that judicial review of regulations is “usually restricted to the grounds that they are inconsistent with the purpose of the statute or that some condition precedent in the statute has not been observed” ( Katz , at paragraph 27). This issue was addressed in CCR 2008 . [ 76 ] In CCR 2008 , the F.C.A. notes in paragraphs 74, 75, 76 and 78 that

section 101 of the IRPA does not require “actual compliance” or compliance in absolute terms. Further, the wording of subsection 102(3) does not reference actual compliance with the Refugee Convention or the Convention against Torture, rather, it is compliance with the factors set out in subsection 102(2) of the IRPA that is assessed. [ 77 ] The applicants’ arguments regarding the sufficiency of the ongoing review were also addressed by the F.C.A. in CCR 2008 , at paragraphs 92–97. For the timeframe post CCR 2008 , in his affidavit, Mr. Baril confirms that reporting on the STCA continued. Mr.

Baril states that the IRCC prepared reports in December 2016, March 2017, and February 2018, although he acknowledges that these reports were not submitted to the Governor in Council (GIC). [ 78 ] Redacted versions of the reports to the Minister were marked as exhibits to Mr. Baril’s cross-examination. Although the content of these reports was not in evidence, they do provide evidence that reporting continued after the 2015 OIC. Therefore, I am satisfied that the obligation to review and to report “when the circumstances warrant” as noted in the 2015 OIC continued.

Furthermore, the applicants’ arguments regarding the 2015 OIC are an attempt to challenge the OIC itself, which is beyond the mandate of this judicial review. [ 79 ] Overall, in my view, the applicants have not convinced me that the threshold to revisit the binding nature of the F.C.A. decision on the vires issue is met here.

Notwithstanding that the factual circumstances of the applicants here may differ from the circumstances before the F.C.A. in 2008, what does not differ are the legal arguments aimed at the same legislative provisions as determined by the F.C.A. in 2008. [ 80 ] I therefore find that the issue of whether

section 159.3 of the IRPR is ultra vires of the IRPA was determined in CCR 2008 and I see no grounds to depart from binding authority. Does the STCA Violate

Section 7 of the Charter ? [Back to table of contents ] [ 81 ]

Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.” Applicants’ Submissions [Back to table of contents ] [ 82 ] The applicants argue that there is a causal connection between Canada’s adherence to the STCA and the deprivation of

section 7 rights because failed STCA applicants are imprisoned upon being returned to the U.S. They argue that liberty and security of the person interests are engaged because of the penalization of asylum seekers by U.S. authorities. According to a report prepared by the UN Human Rights Council in July 2017, as referred to by Dr.

Anker in her affidavit of October 6, 2017 (paragraph 19), the U.S. “now operates the largest immigration detention system in the world”. [ 83 ] Aside from the deprivation of liberty caused by detention, the fact of being detained often results in a lack of basic human dignity, lack of medical care, and lack of food. Furthermore, detention impedes the ability to retain and instruct legal counsel and increases the risk of refoulement. Anwen Hughes states that asylum seekers can be detained for months without review of their detention.

Respondents’ Submissions [Back to table of contents ] [ 84 ] The respondents argue that even if

section 7 is engaged on these facts, there are safeguards in the IRPA , ongoing monitoring of subsection 102(2) factors, and discretionary remedies. They also note that there is the option to seek judicial review of CBSA decisions. Additionally, the respondents argue that the Charter does not apply to U.S. law or the actions of U.S. authorities. Analysis [Back to table of contents ] (

a) Section 7—General Principles

[85]

Section 7 considerations are two-fold. First, a claimant must demonstrate that the challenged law deprives her or him of the rightto life, liberty or security of the person. If so,

section 7 is engaged. Once

section 7 is engaged, the claimant must demonstrate that thedeprivation is not in accordance with the principles of fundamental justice (Carter v.

Canada (Attorney General), 2015 SCC 5, [2015] 1S.C.R. 331 (Carter), paragraph 55). [86] The principles of fundamental justice are concerned with arbitrariness, overbreadth, and gross disproportionality (Carter, atparagraph 72). “The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that isinherently bad; a grossly disproportionate, over-broad, or arbitrary effect on one person is sufficient to establish a breach of s. 7”[emphasis in original] (Canada (Attorney General) v.

Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101 (Bedford), at paragraph 123). [87] As a starting point, I would note that having been physically present in Canada, the individual applicants have the right toadvance a Charter claim (Singh v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17D.L.R. (4th) 422, at paragraph 35 [pages 201–202 of S.C.R.]). Furthermore, the fact that Ms. Mustefa was returned to the U.S., does notprevent her from asserting a Charter claim (Kreishan v.

Canada (Citizenship and Immigration), 2019 FCA 223, [2020] 2 F.C.R. 299(Kreishan), at paragraph 78). [88] In order to properly assess the

section 7 arguments, it is important to understand the process that unfolds under the STCA when aclaimant arrives at a Canadian land POE and claims refugee status. [89] In her affidavit, Sharon Spicer, the Director of Inland Enforcement Operations and Case Management Division for the CBSA,details that process. It starts with an interview by a CBSA Examining Officer (EO) who makes an initial determination on eligibilityunder

section 101 of the IRPA including whether any of the STCA exceptions apply. Exceptions to the STCA are outlined in paragraph101(1)(

e) and include, among others, those who have immediate family who are Canadian citizens or permanent residents, andunaccompanied minors. Following this assessment, the EO prepares an admissibility report to the Minister’s Delegate (MD) undersection 44 of the IRPA outlining the grounds of inadmissibility. [90] Ms. Spicer explains that the MD reviews this report and informs the claimant of the results. If the claimant is eligible to advancea refugee claim, the claim is referred to the Immigration and Refugee Board.

If the claimant is not eligible, the MD issues an exclusionorder, which has immediate effect and removal takes place as soon as possible.

If the CBSA EO determines that a claimant does not fallwithin one of the exceptions, and is therefore ineligible because of the operation of the STCA, the officer has no discretion to exercise. [91] The CBSA arranges for the claimant to be returned to the U.S. by (1) informing their U.S. counterparts that the claimant is beingreturned, (2) providing a notification of return to U.S. authorities, or (3) driving the claimant back to the U.S. [92] Here, each of the individual applicants were found to be ineligible because of the STCA. CBSA returned Ms. Mustefa to the U.S.where she was immediately imprisoned. (

b) Engagement—Liberty [93] The applicants must establish that their liberty and security of the person has been or may be negatively affected or limited andthat there is a sufficient causal connection between the STCA ineligibility finding and the prejudice suffered (Bedford, at paragraphs 58and 75). In Bedford, at paragraph 75 (quoting from Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2S.C.R. 307), the Court noted the need for “a sufficient causal connection between the state-caused [effect] and the prejudice suffered bythe [claimant]” [emphasis in original] for

section 7 to be engaged. The Court also noted that the impugned government action or law doesnot need to be the only or the dominant cause of the prejudice suffered by the claimant; the connection can be satisfied by a reasonableinference drawn on a balance of probabilities. This requires a real and non-speculative link between the prejudice and the legislativeprovisions (Bedford, at paragraph 76). [94] The issue in relation to

section 7 is if the actions of Canadian officials in returning ineligible STCA claimants to U.S. authorities,where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests. The evidenceis clear that the most significant harm suffered is imprisonment. Additionally, there are the related harms regarding the conditions ofdetention and the heightened risk of refoulement. [95] In the case of the applicant Ms. Mustefa, upon being found ineligible she was returned to the U.S. by CBSA officers andimmediately taken into custody by U.S. authorities.

She was detained at the Clinton Correctional Facility for one month and held insolitary confinement for one week. She was released on bond on May 9, 2017. [96] Ms. Mustfa’s imprisonment evidence is compelling. In her affidavit she explains not knowing how long she would be detained orhow long she would be kept in solitary confinement. She describes her time in solitary confinement as “a terrifying, isolating andpsychologically traumatic experience.” Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she couldnot consume it for religious reasons. Ms.

Mustefa describes skipping meals because she was unable to access appropriate food, andlosing nearly 15 pounds. Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside peoplewho had criminal convictions. She explains the facility as “freezing cold” and states that they were not allowed to use blankets during theday. Ms.

Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released,if at all.” [97] The anonymized affiants H.I., L.M., N.O., P.Q., R.S., T.U., V.W., X.Y., and Z.Z., were each detained by U.S. authorities afterbeing refused entry to Canada as ineligible STCA claimants. In their affidavits, the affiants N.O., P.Q., T.U. and V.W., state that CBSAhanded them directly over to U.S. officials.

In the case of the affiant L.M., CBSA also gave her cellphone directly to U.S. officials. [98] There is also the affidavit evidence of lawyers who provide assistance to those detained. Ruby Robinson, Carol Anne Donahue,Ramon Irizarry and Ryan Witmer work for organizations that provide legal services to those detained following their return to the U.S.under the STCA. Ms. Donahue notes that at the detention facility where she provides services, most are detained for two weeks to twomonths. Mr. Witmer notes that nearly all of the STCA returnees he has encountered have been detained for three to five weeks without

bond. Mr. Witmer also states that attempts to claim refugee status in Canada can be used by U.S. authorities as grounds to justify a large bond and ongoing detention. [ 99 ] The lawyers describe meeting their clients in detention and their clients spending weeks in detention before getting bond hearings. In cross-examination, Anwen Hughes confirmed that the average time in detention is 31 days. [ 100 ] Deprivations of

section 7 rights caused by actors other than our own government are still subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government’s participation and the deprivation. In this context, a sufficient causal connection is one in which “Canada’s participation is a necessary precondition” to the deprivation and “where the deprivation is an entirely foreseeable consequence of Canada’s participation” ( Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3 ( Suresh ), at paragraph 54 ). Canada “does not avoid the guarantee of fundamental justi

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