r v. Canada, 2015 FC 892

[2016] 1 F.C.R. 575 2015 FC 892 IMM-3700-13 Y.Z. and the Canadian Association of Refugee Lawyers ( Applicants ) v. The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness ( Respondents ) IMM-5940-14 G.S. and C.S. ( Applicants ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Y.Z. v. Canada (C itizenship and I mmigration ) Federal Court, Boswell J.—Toronto, February 24 and 25; Ottawa, July 23, 2015.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Designated countries of origin — Judicial reviews challenging constitutionality of Immigration and Refugee Protection Act, s. 110(2) (d.1), mechanism for selecting designated countries of origin (DCOs) — Applicants refugee claimants from DCOs, alleging that denying DCO refugees appeal to Refugee Appeal Division (RAD) violating Canadian Charter of Rights and Freedoms, ss. 7 , 15(1) — Refugee Protection Division rejecting applicants’ claims — Applicants challenging constitutionality of DCO regime by appealing to RAD — RAD deciding not having jurisdiction to assess constitutionality of Act , s. 110(2) — Whether s. 110(2)(d.1) infringing Charter, ss. 15(1), 7; if so, whether s. 110(2)(d.1) justified by Charter, s. 1 — S. 110(2)(d.1) violating Charter, s. 15(1) — Differential treatment in s. 110(2)(d.1) distinction on basis of national origin of refugee claimants — Such distinction creating procedural advantage for non-DCO refugee claimants — S. 110(2)(d.1) depriving refugee claimants from DCO countries of substantive equality vis-à-vis those from non-DCO countries — No need to address whether s. 110(2)(d.1) infringing Charter, s. 7 as applicants’ arguments primarily related to Act, s. 109.1 — Charter, s. 1 engaged, denial of appeal to RAD for DCO refugee claimants “prescribed by law” — Pressing, substantial objective in effecting refugee, immigration reforms present — However, s. 110(2)(d.1) not minimally impairing — Denying appeal to RAD to some claimants but not others not justified — Not necessary to differentiate between DCO and non-DCO claimants to preclude appeals to RAD since goal of deterring abusive, unfounded refugee claims achieved by combined effect of Act, ss. 107.1 , 107(2) , 110(2) (b),(c) — Denying appeal to all claimants from DCOs not proportional to government’s objectives; disproportionate, overbroad inequality not saved by

section 1 — S. 110(2)(d.1) declared inconsistent with Charter, s. 15 , of no force, effect — Decisions of RAD set aside — Questions certified — Applications allowed in part.

Constitutional Law — Charter of Rights — Equality Rights — Applicants challenging constitutionality of Immigration and Refugee Protection Act, s. 110(2) (d.1), mechanism for selecting designated countries of origin (DCOs) — Applicants alleging that denying DCO refugees appeal to Refugee Appeal Division (RAD) violating Charter, s. 15(1) — Applicants arguing, inter alia, s. 15(1) should be interpreted in manner giving effect to Canada’s international human rights obligations; Act , s. 110(2)(d.1) creating distinction based on national origin, creating disadvantage — Whether Act, s. 110(2)(d.1) infringing s. 15(1) — Test in Withler v.

Canada (Attorney General) met, Act, s. 110(2)(d.1) violating s. 15(1) — Differential treatment in Act, s. 110(2)(d.1) distinction on basis of national origin of refugee claimants — Distinction made without regard to claimants’ personal characteristics or whether country safe — Claimants having no control over when respondent Minister of Citizenship and Immigration could stop drawing distinctions — Two classes of refugee claimants based on national origin created by Act, s. 110(2)(d.1) — Distinction creating procedural advantage accorded to non-DCO refugee claimants, disadvantage suffered by DCO refugee claimants discriminatory — Serving to marginalize, prejudice, stereotype refugee claimants from DCO countries — Act, s. 110(2)(d.1) depriving refugee claimants from DCO countries of substantive equality vis-à-vis those from non-DCO countries.

Constitutional Law — Charter of Rights — Limitation Clause — Applicants challenging constitutionality of Immigration and Refugee Protection Act, s. 110(2) (d.1), mechanism for selecting designated countries of origin (DCOs) — Applicants alleging that denying DCO refugees appeal to Refugee Appeal Division (RAD) violating Charter, ss. 7 , 15(1) , Act , that these violations not justified by Charter, s. 1 — Act, s. 110(2)(d.1) violating s. 15(1) — Test to determine whether denial of appeal to RAD for a DCO claimant reasonable limit set out in The Queen v.

Oakes — S. 1 engaged, denial of appeal to RAD for DCO refugee claimants “prescribed by law” — Pressing, substantial objective in effecting refugee, immigration reforms present — However, Act, s. 110(2)(d.1) not minimally impairing — Denying appeal to RAD to some claimants but not others not justified — Respondents not proving that absolute bar preventing appeals to RAD least drastic means for Canada to achieve its objectives — Deterring abusive, unfounded refugee claims achieved by combined effect of Act, ss. 107.1 , 107(2) , 110(2)(b),(c) — Denying appeal to RAD serious impairment of right to equality — Risk of refoulement from lack of RAD appeal not entirely mitigated by other avenues open to DCO claimants — Denying appeal to all DCO claimants not proportional to government’s objectives — Disproportionate, overbroad inequality not saved by s. 1.

These were applications for judicial review challenging the constitutionality of paragraph 110(2) ( d.1 ) of the Immigration and Refugee Protection Act (Act) and the mechanism for selecting designated countries of origin (DCOs). The applicants, refugee claimants from DCOs, alleged that denying refugee claimants from DCOs an appeal to the Refugee Appeal Division (RAD) violates

section 7 and subsection 15(1) of the Canadian Charter of Rights and Freedoms . The Refugee Protection Division (RPD) of the Immigration and Refugee Board rejected the applicants’ claims on the basis that their respective countries provided adequate state protection. The applicants tried to challenge the constitutionality of the DCO regime by

appealing to the RAD. The RAD decided that it did not have jurisdiction to assess the constitutionality of any provisions in subsection 110(2) of the Act , and that it could only determine whether the conditions listed in this subsection were factually met. The applicants argued, inter alia , that subsection 15(1) of the Charter should be interpreted in a manner that gives effect to Canada’s international human rights obligations; that paragraph 110(2)( d.1 ) of the Act creates a distinction based on an enumerated ground, i.e. national origin, and a disadvantage by perpetuating prejudice or stereotyping; that

section 7 is engaged because weakening the procedural and substantive safeguards for refugee claimants from DCOs increases the risk of refoulement; and that

section 1 of the Charter cannot justify the violations since the review process for designation of designated countries is not “prescribed by law”. The main issues were whether paragraph 110(2) ( d.1 ) of the Act infringes subsection 15(1) and

section 7 of the Charter , and if so, whether paragraph 110(2)( d.1 ) is justified by

section 1 of the Charter. Held , the applications should be allowed in part. Paragraph 110(2) ( d.1 ) of the Act violates subsection 15(1) of the Charter . The test for a violation of subsection 15(1) of the Charter is set out in Withler v. Canada (Attorney General) , wherein the Supreme Court stated that the substantive equality analysis under subsection 15(1) proceeds by determining whether the law creates a distinction based on an enumerated or analogous ground, and whether the distinction creates a disadvantage by perpetuating prejudice or stereotyping.

The differential treatment in paragraph 110(2)( d.1 ) of the Act was clearly a distinction on the basis of the national origin of a refugee claimant. The reason a DCO claimant is treated differently is because of the country from which such claimant originates. This distinction is made without regard to claimants’ personal characteristics or whether that country is actually safe for them. Moreover, the fact that a country could conceivably be removed from the list of designated countries in the future does not make a claimant’s national origin mutable.

All it means is that the respondent Minister of Citizenship and Immigration could stop drawing distinctions on the basis of their national origin in the future and claimants have no control over when that might be. The first aspect of the Withler test was satisfied by the very provisions of paragraph 110(2) ( d.1 ) itself inasmuch as it creates two classes of refugee claimants based on national origin: those foreign nationals from a DCO and those who are not from a DCO.

As to whether the distinction between DCO and non-DCO claimants under paragraph 110(2)( d.1 ) creates a disadvantage by perpetuating prejudice or stereotyping, the procedural advantage accorded to non-DCO refugee claimants and the disadvantage suffered by DCO refugee claimants under paragraph 110(2) ( d.1 ) is discriminatory on its face. It also serves to further marginalize, prejudice, and stereotype refugee claimants from DCO countries which are generally considered safe and “non-refugee producing”.

Moreover, it perpetuates a stereotype that refugee claimants from DCO countries are somehow queue-jumpers or “bogus” claimants who only come here to take advantage of Canada’s refugee system. The introduction of paragraph 110(2)( d.1 ) of the Act has deprived refugee claimants from DCO countries of substantive equality vis-à-vis those from non-DCO countries. Expressly imposing a disadvantage on the basis of national origin alone constitutes discrimination.

The contention that paragraph 110(2) ( d.1 ) can legitimately limit access to an appeal to the RAD for DCO refugee claimants because there is still an individualized assessment before the RPD for every refugee claimant from those countries, was rejected. In view of the conclusion that paragraph 110(2) ( d.1 ) violates subsection 15(1) of the Charter, it was unnecessary to consider whether paragraph 110(2)( d.1 ) has a disproportionate impact on any particular subgroups of claimants. There was no need to address the issue of whether paragraph 110(2) ( d.1 ) of the Act infringes

section 7 of the Charter . The applicants’ arguments with respect to

section 7 of the Charter were primarily related to the selection mechanism under

section 109.1 and whether the DCO regime as a whole is a grossly disproportionate way of deterring abusive refugee claims. The test to determine whether the denial of an appeal to the RAD for a DCO claimant is a reasonable limit prescribed by law that can be demonstrably justified in a free and democratic society is set out in The Queen v. Oakes . The central question is whether the negative impact of paragraph 110(2) ( d.1 ) on the rights of DCO claimants vis-à-vis other refugee claimants is proportionate to the pressing and substantial goal of paragraph 110(2) ( d.1 ) in furthering the public interest.

The denial of an appeal to the RAD for DCO refugee claimants in paragraph 110(2) ( d.1 ) is “prescribed by law” and, therefore,

section 1 of the Charter is engaged. Canada had a pressing and substantial objective in effecting the reforms in the Balanced Refugee Reform Act and Protecting Canada’s Immigration System Act . The objective of paragraph 110(2) ( d.1 ) is to reduce the layers of recourse and ensure that failed claimants from DCOs can be removed faster. However, even if it may have been reasonable to suppose that denying an appeal to the RAD might further such objectives, it cannot be said that paragraph 110(2) ( d.1 ) is minimally impairing.

The fact that some claimants can and others cannot make an appeal to the RAD is not justified. It was not proven that an absolute bar preventing appeals to the RAD for all claims from DCOs is the least drastic means by which Canada could satisfy its objectives. Nor was any evidence supplied to prove that paragraph 110(2) ( d.1 ) has any additional deterrent effect. It was not necessary for Parliament to differentiate between DCO and non-DCO claimants to preclude appeals to the RAD since the stated goal of deterring abusive or unfounded claims could be achieved by the combined effect of

section 107.1, subsection 107(2) and paragraphs 110(2) (

b) and (

c) of Act . Denying an appeal to the RAD to some claimants based on their country of origin is a serious impairment of their right to equality. Furthermore, unlike non-DCO claimants, DCO claimants do not benefit from an automatic stay of removal while seeking judicial review of a negative RPD decision. Any risk of refoulement from the lack of a RAD appeal is not entirely mitigated by the other avenues open to DCO claimants. Denying an appeal to all claimants from DCOs is not proportional to the government’s objectives; it is an inequality that is disproportionate and overbroad and cannot be saved by

section 1 of the Charter. Paragraph 110(2) ( d.1 ) of the Act was declared inconsistent with subsection 15(1) of the Charter and of no force and effect pursuant to subsection 52(1) of the Constitution Act, 1982 ; the decisions of the RAD were set aside; and the appeals of applicants G.S. and C.S. were returned to the RAD for redetermination. The questions as to whether paragraph 110(2)( d.1 ) of the Act complies with subsection 15(1) of the Charter; and if not, whether paragraph 110(2)( d.1 ) is a reasonable limit on Charter rights that is prescribed by law and can be demonstrably justified under

section 1 of the Charter, were certified. STATUTES AND REGULATIONS CITED Balanced Refugee Reform Act , S.C. 2010, c. 8. Canadian Charter of Rights and Freedoms , being

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

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(2012) C. Gaz. II, 1135. Protecting Canada’s Immigration System Act, S.C. 2012, c. 17. Refugee Protection Division Rules, SOR/2012-256, rr. 3(2),(3)(b), 7, 8, 54(1),(4),(5). TREATIES AND OTHER INSTRUMENTS CITED Convention for the Protection of Human Rights and Fundamental Freedoms, November 4, 1950, 213 U.N.T.S. 221, Art. 13. Protocol No. 24 on Asylum for Nationals of Member States of the European Union. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 3. CASES CITED APPLIED: Canadian Doctors for Refugee Care v.

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Canada (Citizenship and Immigration), 2013 FCA 168, [2014] 4 F.C.R. 290. DISTINGUISHED: Pawar v. Canada, , 67 C.R.R. (2d) 284 (F.C.A.). CONSIDERED: X (Re), (I.R.B.); Mackay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385;Peter v. Canada (Public Safety and Emergency Preparedness), 2014 FC 1073, 84 Admin. L.R. (5th) 1; Canada (Royal CanadianMounted Police Public Complaints Commission) v. Canada (Attorney General), 2005 FCA 213, [2006] 1 F.C.R. 53; Finlay v. Canada(Minister of Finance), (SCC), [1986] 2 S.C.R. 607, (1986), 33 D.L.R. (4th) 321; David Bull Laboratories (Canada) Inc.v.

Pharmacia Inc., (FCA), [1995] 1 F.C. 588, (1994), 58 C.P.R. (3d) 209 (C.A.); Bedford v. Canada (AttorneyGeneral), 2012 ONCA 186, 109 O.R. (3d) 1; R. v. D.D., 2000 SCC 43, [2000] 2 S.C.R. 275; Graat v. The Queen, (SCC), [1982] 2 S.C.R. 819, (1982), 144 D.L.R. (3d) 267; Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548;Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Greater Vancouver Transportation Authority v.Canadian Federation of Students — British Columbia Component, 2009 SCC 31, [2009] 2 S.C.R. 295; Alberta v.

Hutterian Brethren ofWilson Colony, 2009 SCC 37, [2009] 2 S.C.R. 567; R. v. Therens et al., (SCC), [1985] 1 S.C.R. 613, (1985), 18 D.L.R.(4th) 655; Osborne v. Canada (Treasury Board), (SCC), [1991] 2 S.C.R. 69, (1991), 82 D.L.R. (4th) 321; RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; Mounted PoliceAssociation of Ontario v. Canada (Attorney General), 2015 SCC 1, [2015] 1 S.C.R. 3. REFERRED TO: Nova Scotia (Workers' Compensation Board) v. Martin; Nova Scotia (Workers' Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2S.C.R. 504; Kroon v.

Canada (Minister of Citizenship and Immigration), 2004 FC 697, 15 Admin. L.R. (4th) 315; Phillips v. Nova Scotia(Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R. 97, (1995), 141 N.S.R. (2d) 1; Ishaq v.Canada (Citizenship and Immigration), 2015 FC 156, [2015] 4 F.C.R. 297; Atawnah v. Canada (Public Safety and EmergencyPreparedness), 2015 FC 774; Apotex Inc. v. Canada (Governor in Council), 2007 FCA 374, 76 Admin. L.R. (4th) 20; JP Morgan AssetManagement (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557; Singh et al. v. Minister of Employment

and Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422; R. v. Mohan, (SCC), [1994]2 S.C.R. 9, (1994), 114 D.L.R. (4th) 419; R. v. Abbey, 2009 ONCA 624, 97 O.R. (3d) 330; R. v. Goltz, (SCC), [1991] 3S.C.R. 485, (1991), 11 W.A.C. 161; Armstrong v. Canada (Attorney General), 2005 FC 1013; Gravel v. Telus Communications Inc.,2011 FCA 14; Mayne Pharma (Canada) Inc. v. Aventis Pharma Inc., 2005 FCA 50, 38 C.P.R. (4th) 1; Association of Universities andColleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297; Meggeson v.

Canada(Attorney General), 2012 FCA 175, 349 D.L.R. (4th) 185; Hinton v. Canada (Minister of Citizenship and Immigration), 2008 FCA 215,[2009] 1 F.C.R. 476; White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182; R. v. Hape, 2007SCC 26, [2007] 2 S.C.R. 292; Quebec (Attorney General) v. A, 2013 SCC 5, [2013] 1 S.C.R. 61; Barbra Schlifer Commemorative Clinicv. Canada, 2014 ONSC 5140, 121 O.R. (3d) 733; Law v. Canada (Minister of Employment and Immigration), (SCC),[1999] 1 S.C.R. 497, (1999), 170 D.L.R. (4th) 1; Lakatos v. Canada (Citizenship and Immigration), 2014 FC 785; R. v.

Meltzer, (SCC), [1989] 1 S.C.R. 1764, (1989), 49 C.C.C. (3d) 453; Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53,(1993), 102 D.L.R. (4th) 456; Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R.1120; Canada (Attorney General) v. JTI-Macdonald Corp., 2007 SCC 30, [2007] 2 S.C.R. 610; Re B.C. Motor Vehicle Act, (SCC), [1985] 2 S.C.R. 486, (1985), 24 D.L.R. (4th) 536; Corbiere v. Canada (Minister of Indian and Northern Affairs), (SCC), [1999] 2 S.C.R. 203, (1999), 173 D.L.R. (4th) 1. AUTHORS CITED Cross, Sir Rupert. Cross on Evidence, 5th ed.

London: Butterworths, 1979. Hogg, Peter W. Constitutional Law of Canada, 5th ed. Vol. 2, loose-leaf. Toronto: Thomson/Carswell, 2007. House of Commons Debates, 40th Parl., 3rd Sess., No. 33 (26 April 2010). House of Commons Debates, 40th Parl., 3rd Sess., No. 36 (29 April 2010). House of Commons Debates, 41st Parl., 1st Sess., No. 220 (6 March 2012). Office of the Auditor General of Canada. Status Report of the Auditor General of Canada to the House of Commons (2009),

Chapter 2“Governor in Council Appointments Process”, online: <http://www.oag-bvg.gc.ca/internet/docs/parl_oag_200903_02_e.pdf>. appLICATIONS for judicial review challenging the constitutionality of paragraph 110(2)(d.1) of the Immigration and RefugeeProtection Act and the mechanism for selecting designated countries of origin. Applications allowed in part. APPEARANCES Maureen Silcoff for applicant Y.Z. Jared Will for applicant Canadian Association of Refugee Lawyers. Prasanna Balasundaram for applicants G.S. and C.S.

David Tyndale, Jelena Urosevic, Suran Bhattacharyya, Nimanthika Kaneira and Lucan Gregory for respondents. SOLICITORS OF RECORD Silcoff Shacter, Toronto, for applicant Y.Z. Jared Will, Toronto, for applicant Canadian Association of Refugee Lawyers. Downtown Legal Services, Toronto, for applicants G.S. and C.S. Deputy Attorney General of Canada for respondent. The following are the reasons for judgment and judgment rendered in English by Boswell J.: TABLE OF CONTENTS Paragraph I. Introduction 1–6 II. Overview of the designated countries of origin regime 7–14 III. Is

section 109.1 directly in issue? 15–23 IV. Issues 24 V. Does CARL have standing as a public interest litigant? 25 A. CARL’s arguments 26–30 B. Respondents’ arguments 31–35 C. Analysis 36– 43 VI. The affidavit evidence 44–45 A. The applicants’ affidavit evidence 46–68 B. The respondents’ affidavit evidence 69–76

C. Should the impugned affidavits be struck out? 77–83

(1) Respondents’ arguments 77–83

(2) Applicants’ arguments 84–90

(3) Analysis 91–101 VII. Does paragraph 110(2)(d.1) of the Act infringe subsection 15(1) of the Charter? 102 A. Applicants’ arguments 103–107 B. Respondents’ arguments 108–114 C. Analysis 115–131 VIII. Does paragraph 110(2)(d.1) of the IRPA infringe

section 7 of the Charter? 132 A. Applicants’ arguments 133–138 B. Respondents’ arguments 139–141 C. Analysis 142–143 IX. If Charter rights are infringed, is paragraph 110(2)(d.1) of the IRPA justified by

section 1 of the Charter?144 A. Respondents’ arguments 145–151 B. Applicants’ arguments 152–153 C. Analysis 154–170 X. If paragraph 110(2)(d.1) of the IRPA is unconstitutional, what is an appropriate remedy? 171–177 XI. What questions should be certified? 178–183 XII. Conclusion 184–185 I. Introduction [1] As part of the reforms enacted by the Protecting Canada’s Immigration System Act, S.C. 2012, c. 17, Parliament addedparagraph 110(2)(d.1) to the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA [or Act]).

This new paragraph becameeffective on December 10, 2012, the same date as when the Refugee Appeal Division (RAD) of the Immigration and Refugee Board(I.R.B.) became operational under

section 110 of the IRPA (Order Fixing December 15, 2012 as the Day on which Certain Sections ofthe Act Come into Force, SI/2012-94,

(2012) C. Gaz. II, 2980; IRPA,

section 275). Paragraph 110(2)(d.1) denies access to the RAD forall refugee claimants from any country designated by the Minister of Citizenship and Immigration pursuant to

section 109.1 of the IRPA. [2] The present applications for judicial review challenge the constitutionality of paragraph 110(2)(d.1) and the mechanism forselecting which countries to designate. The applicants allege that denying refugee claimants from designated countries of origin anappeal to the Refugee Appeal Division violates

section 7 and subsection 15(1) of the Canadian Charter of Rights and Freedoms, beingPart 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). [3] The primary applicants are three refugee claimants from designated countries of origin (DCOs). Y.Z. is a citizen of Croatia whofears persecution as a Serb and a gay man.

G.S. and C.S. are a gay couple from Hungary whose fear is based on their sexual orientation;C.S. is also a national of Romania. [4] The Refugee Protection Division (RPD) of the I.R.B. found each of these three applicants credible, but ultimately rejected theirclaims on the basis that there was adequate state protection in Croatia for Y.Z. and in Hungary for G.S. and C.S. They each obtainedleave to apply for judicial review of those RPD decisions, and this Court determined that the RPD’s conclusion about state protectionwas unreasonable in Y.Z.’s case and allowed his application for judicial review.

That determination, however, does not impact Y.Z.’sstatus as a party to this matter. Unless and until the RPD determines him to be a refugee, there is still a live issue as to whether he isentitled to appeal to the RAD. The decision in G.S. and C.S.’s application for judicial review remains pending. [5] Concurrently, the applicants tried to challenge the constitutionality of the DCO regime by appealing to the RAD.

On May 2,2013 [X (Re), ], Y.Z.’s appeal to the RAD was dismissed before he even had time to perfect it, with the RAD simplystating that it did not have jurisdiction by virtue of paragraph 110(2)(d.1) of the IRPA. Y.Z. eventually withdrew an application to reopenhis appeal. G.S. and C.S. did perfect their appeal, but it too was dismissed by the RAD on July 11, 2014.

The RAD decided that it did nothave jurisdiction to assess the constitutionality of any provisions in subsection 110(2) of the IRPA, and that it could only determinewhether the conditions listed in this subsection were factually met (citing Nova Scotia (Workers’ Compensation Board) v. Martin; NovaScotia (Workers’ Compensation Board) v. Laseur, 2003 SCC 54, [2003] 2 S.C.R. 504, at paragraphs 42 and 48; Kroon v. Canada(Minister of Citizenship and Immigration), 2004 FC 697, 15 Admin.

L.R. (4th) 315, at paragraphs 9, 32–33 and 40; and others). [6] The applicants now seek judicial review of the RAD’s decisions pursuant to subsection 72(1) of the IRPA. The CanadianAssociation of Refugee Lawyers (CARL) also applied with Y.Z. as a public interest litigant. The respondents’ motion opposing CARL’sstanding was not filed until December 16, 2014, more than 18 months after Y.Z and CARL filed their application for leave and forjudicial review; that motion was dismissed by an order of the Court dated January 15, 2015, because it had not been brought in a diligentmanner.

Nonetheless, the Court’s order dismissing the motion was made without prejudice to the respondents raising the samearguments at the hearing of this matter, and they did so. The respondents also moved to strike out many of the affidavits filed by theapplicants. That motion, which was filed on November 19, 2014, was deferred to the hearing of these consolidated applications. II.

Overview of the designated countries of origin regime [7] Teny Dikranian, one of the respondents’ witnesses, states in her affidavit that one of the principal goals of the DCO regime “is todeter abuse of [Canada’s] refugee system by people who come from countries generally considered safe and ‘non-refugee producing’,while preserving the right of every eligible refugee claimant to have a fair hearing before the IRB”. To achieve that goal, Parliamentcreated a separate procedure for refugee claims made by nationals of a DCO.

They still have a full hearing before the RPD, but theirclaims are treated differently under the IRPA and the Immigration and Refugee Protection Regulations, SOR/2002-227 (Regulations).

The relevant legislative provisions are reproduced in Annex A to these reasons. They contemplate several unique consequences for claimants from DCOs. I will shortly review these consequences in more detail below; but for the moment the most significant consequences are summarized in the following chart: DCO Claimants Non-DCO Claimants IRPA and Regulations Eligible for work permit under R206? 180 days after claim referred to RPD Immediately after claim referred to RPD A30(1.1); A32( d ); R206(1); R206(2) Time to RPD hearing?

Within 45 days (port of entry) Within 30 days (inland) Within 60 days A100(4.1); A111.1(1)( b ); A111.1(2); R159.9(1) Eligible for RAD appeal? No Yes, unless otherwise precluded by A110(2) A110(2)( d.1 ) Removal order comes into force? 15 days after receiving written RPD decision If appealed to RAD, 15 days after notice that RAD appeal rejected Otherwise, 15 days after receiving written RPD decision A49(2)( c ); A110(2.1); R159.91(1)(

a) Automatic stay of removal until judicial review decided and any appeals exhausted? No Yes, if applying for judicial review of RAD decision R231(1); R231(2) Pre-Removal Risk Application bar? 36 months 12 months A112(2)( b.1 ); A112(2)( c ) [ 8 ] The differential procedures faced by DCO claimants vis-à-vis non-DCO claimants under the IRPA are as follows: 1. Subsection 206(1) of the Regulations normally allows foreign nationals whose claims are referred to the RPD to get a work permit if they cannot support themselves without working and are subject to an unenforceable removal order.

However, subsection 206(2) of the Regulations provides that a foreign national from a DCO cannot be issued a work permit unless 180 days have passed since his or her claim was first referred to the RPD. 2. Subsection 111.1(2) of the IRPA authorizes the creation of regulations that “provide for time limits [for claimants from DCOs] that are different from the time limits for other claimants” when scheduling a hearing pursuant to subsection 100(4.1) of the IRPA. This has been done by paragraph 159.9(1) (

a) of the Regulations , which provides that a hearing for a DCO claimant must be scheduled within 45 days if he or she asks for protection at a port of entry, or within 30 days if he or she asks for protection inland. For claimants from non-DCOs, hearings are expected to be scheduled within 60 days no matter where they make their claim (Regulations, paragraph 159.9(1)( b )). Subject to the availability of counsel, a hearing will be scheduled on “the date closest to the last day of the applicable time limit set out in the Regulations, unless the claimant agrees to an earlier date” ( Refugee Protection Division Rules , SOR/2012-256 (RPD Rules), subsection 3(2) , paragraph 3(3) (

b) and subsection 54(5) ). All claimants can apply to change the date of the hearing in exceptional circumstances ( RPD Rules, subsections 54(1) , 54(4) ). 3. Subsection 161(1.1) of the IRPA permits the Chairperson of the I.R.B. to differentiate between DCO and non-DCO claimants when making rules about “the information that may be required and the manner in which, and the time within which, it must be provided with respect to a proceeding before the Board” ( Act , paragraph 161(1) ( c ), subsection 161(1.1) ). To date, it appears that no rules which make such distinctions have yet been enacted.

Claimants from any country must submit their basis of claim forms and other relevant documents as soon as their claims are referred to the RPD if their claims are made inland, or within 15 days if their claims are made at a port of entry (IRPA, subsections 99(3.1), 100(4), paragraph 111.1(1)( a ); Regulations,

section 159.8 ; RPD Rules, rule 7 ). All claimants can also ask for extensions of time ( Regulations,

section 159.8(3) ; RPD Rules, rule 8 ). 4. DCO claimants cannot appeal a negative RPD decision to the RAD because of paragraph 110(2)( d.1 ): 110. … Restriction on appeals

(2) No appeal [to the RAD] may be made in respect of any of the following: … ( d.1 ) a decision of the Refugee Protection Division allowing or rejecting a claim for refugee protection made by a foreign national who is a national of a country that was, on the day on which the decision was made, a country designated under subsection 109.1(1).

The same is not true of claimants from other non-DCO countries; they will only lose access to the RAD if one of the other conditions in subsection 110(2) is met (e.g., if a decision of the RPD “states that the claim has no credible basis or is manifestly unfounded” ( Act , paragraph 110(2) ( c ))). 5. Removal orders will typically come into force sooner for claimants from DCOs. Paragraph 49(2)(

c) of the IRPA prevents a removal order for refugee claimants from coming into force until 15 days after any appeal to the RAD is rejected, which is something DCO claimants can never benefit from since they are denied an appeal to the RAD.

Instead, their departure orders will come into force 15 days after they receive the RPD’s written reasons for rejecting their claims, and their departure orders will become deportation orders 30 days after that unless they leave Canada before then (IRPA, paragraph 49(2)( c ), subsection 110(2.1); Regulations, paragraph 159.91(1) ( a ), subsection 224(2) , paragraphs 240(1) ( a )–( c ); affidavit of Christopher Raymond (20 November 2014), at paragraphs 3–5). 6. Subsection 231(1) of the Regulations grants an automatic stay of removal to refugee claimants who seek judicial review of a

RAD decision, but not to those who seek judicial review of a RPD decision. Thus, DCO claimants cannot benefit from that subsection. Even if they had an appeal to the RAD because their country was only designated after the RPD had rejected their claim, subsection 231(2) ensures that these claimants will not get an automatic stay of removal if they subsequently apply for judicial review. Consequently, unless they can obtain a judicial stay of removal from this Court, DCO claimants may be removed from Canada before their applications for leave and for judicial review are even considered by this Court. 7. Unless certain exemptions are granted, paragraphs 112(2)( b.1 ) and (

c) of the IRPA bar all refugee claimants from seeking a pre- removal risk assessment until 12 months have passed since their claim for protection was last rejected. DCO claimants, however, have to wait 36 months in the same circumstances. [ 9 ] Designation as a DCO also affected the level of government-funded health care that claimants from DCOs received until the Order Respecting the Interim Federal Health Program , 2012 , SI/2012-26,

(2012) C. Gaz. II, 1135, was invalidated by Madam Justice Anne Mactavish in Canadian Doctors for Refugee Care v. Canada (Attorney General) , 2014 FC 651 , [2015] 2 F.C.R. 267 ( Canadian Doctors ). [ 10 ] As for how a country is designated, this is governed by

section 109.1 of the IRPA: Designation of countries of origin 109.1

(1) The Minister may, by order, designate a country, for the purposes of subsection 110(2) and

section 111.1. Limitation

(2) The Minister may only make a designation (

a) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is equal to or greater than the number provided for by order of the Minister, (

i) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division during the period provided for in the order, are rejected or determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order, or (ii) if the rate, expressed as a percentage, that is obtained by dividing the total number of claims made by nationals of the country in question that, in a final determination by the Division, during the period provided for in the order, are determined to be withdrawn or abandoned by the total number of claims made by nationals of the country in question in respect of which the Division has, during the same period, made a final determination is equal to or greater than the percentage provided for in the order; or (

b) in the case where the number of claims for refugee protection made in Canada by nationals of the country in question in respect of which the Refugee Protection Division has made a final determination is less than the number provided for by order of the Minister, if the Minister is of the opinion that in the country in question (

i) there is an independent judicial system, (ii) basic democratic rights and freedoms are recognized and mechanisms for redress are available if those rights or freedoms are infringed, and (iii) civil society organizations exist. Order of Minister

(3) The Minister may, by order, provide for the number, period or percentages referred to in subsection (2). Statutory Instruments Act

(4) An order made under subsection (1) or (3) is not a statutory instrument for the purposes of the Statutory Instruments Act . However, it must be published in the Canada Gazette . [ 11 ] Pursuant to subsection 109.1(3), the Minister of Citizenship and Immigration (MCI) has issued an Order Establishing Quantitative Thresholds for the Designation of Countries of Origin ,

(2012) C. Gaz. I, 3378 (Thresholds Order), which prescribes the numbers used in subsection 109.1(2) as follows: 2. For the purposes of paragraphs 109.1(2) (

a) and (

b) of the Act , the number provided is 30 during any period of 12 consecutive months in the three years preceding the date of the designation. 3. For the purposes of subparagraph 109.1(2) ( a )(

i) of the Act , the period provided is the same 12 months used in

section 2 , and the percentage is 75%. 4. For the purposes of subparagraph 109.1(2) ( a )(ii) of the Act , the period provided is the same 12 months used in

section 2 , and the percentage is 60%. [ 12 ] One of the respondents’ witnesses, Eva Lazar, testifies that when a country meets the quantitative criteria set out in paragraph 109.1(2) (

a) or the qualitative criteria set out in paragraph 109.1(2)( b ), the Monitoring, Analysis and Country Assessment Division (MACAD) of the Refugee Affairs Branch at Citizenship and Immigration Canada (CIC) will conduct an in-depth review of the conditions in that country. This process requires a careful examination of publicly available and objective evidence from a range of credible sources such as the United States Department of State, the United Nations Human Rights Committee, Amnesty International, and local non-governmental organizations. The MACAD then prepares a report assessing nine human rights and state protection factors:

(1) democratic governance; (2) protection of right to liberty and security of the person; (3) freedom of opinion and expression; (4)freedom of religion and association; (5) freedom from discrimination and protection of rights for groups at risk; (6) protection from non-state actors; (7) access to impartial investigations; (8) access to an independent judiciary system; and (9) access to redress (collectively,the designation factors).

This report is finalized through consultation with the Directors General Interdepartmental Committee on DCO,which includes representatives from: CIC; the Canada Border Services Agency (CBSA); the Department of Foreign Affairs, Trade, andDevelopment; Public Safety; the Department of Justice; the Canadian Security Intelligence Service; and the Royal Canadian MountedPolice.

If designation is recommended, then that recommendation and the final DCO country review are sent to the MCI, who will thendecide whether to designate the country. [13] When this matter was heard, 42 countries had been designated by the MCI as DCOs. Croatia, Hungary and Romania have beendesignated on a quantitative basis under paragraph 109.1(2)(a). Other countries such as Andorra, Estonia and Slovenia have beendesignated on a qualitative basis under paragraph 109.1(2)(b). Of the 42 DCOs, country reviews were triggered on a quantitative basisunder paragraph 109.1(2)(

a) for 19 countries, and on a qualitative basis under paragraph 109.1(2)(

b) for 23 countries. [14] There is no express authority set out in the IRPA for removing a country’s designation, but Ms. Lazar testifies that the MCIapproved a process for doing so on or about October 14, 2014. This process requires that all DCOs are regularly monitored forsignificant changes in country conditions and also reassessed annually against the designation factors.

A review may be recommended ifconditions appear to be deteriorating significantly in any five of the nine designation factors, or in any one of the three key criteria:democratic governance; protection of the rights to liberty and security of the person; and an independent judiciary. If there is a review,then a full country report will again be prepared and the MCI will decide whether the country should remain designated. At the time ofthe hearing of this matter, no DCO has been removed from the list of DCOs. III. Is

section 109.1 directly in issue? [15] The applicants frame the issues arising from these applications more broadly than the respondents. They say that the primaryquestion to resolve is whether the combined effect of

section 109.1, paragraph 110(2)(d.1) of the IRPA and the Thresholds Order violatesection 7 or subsection 15(1) of the Charter. At the hearing of this matter, the applicants challenged the entire DCO regime insofar asthey argued that the designation process itself is not Charter-compliant. [16] In contrast, the respondents contend that the applicants are seeking remedies which are not properly part of these applications,noting in particular that their applications for judicial review do not ask that the Thresholds Order be declared void and of no force andeffect.

According to the respondents, if the declaratory relief sought with respect to paragraph 110(2)(d.1) is granted, declaring section109.1 of the IRPA and the associated Thresholds Order to be void and of no force and effect would be superfluous because the individualapplicants would obtain the remedy they seek; that is, an appeal to the RAD. [17] I agree with the respondents that the relief sought by the applicants has evolved over time.

The application in Court file IMM-3700-13, dated May 27, 2013, requests only that the RAD’s decision in Y.Z.’s case be set aside and that paragraph 110(2)(d.1) of theIRPA be declared to have no force and effect pursuant to subsection 52(1) of the Constitution Act, 1982,

Schedule B, Canada Act 1982,1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] (Constitution Act, 1982). The application in Court file IMM-5940-14, datedAugust 5, 2014, requests that the RAD’s decision in the case of G.S. and C.S. be set aside and that both

section 109.1 and paragraph110(2)(d.1) of the IRPA be declared to have no force and effect pursuant to

section 52 of the Constitution Act, 1982. Most recently, thenotice of constitutional question, dated February 11, 2015, states the applicants’ intention to question the constitutional validity of “theeffect of”

section 109.1, paragraph 110(2)(d.1), and the Thresholds Order. [18] I further agree with the respondents that it would be inappropriate to assess whether the DCO regime as a whole, or any aspect ofthe regime other than paragraph 110(2)(d.1), is not compliant with the Charter. It is not appropriate in this case to directly assess theconstitutionality of

section 109.1 and the associated Thresholds Order for several reasons. [19] First, a finding that paragraph 110(2)(d.1) is unconstitutional would be sufficient to grant the individual applicants thesubstantive relief they seek in these applications; that is, an appeal to the RAD in respect of their claims which were rejected by the RPD.To go beyond this constitutional issue and also assess the constitutionality of other aspects of the DCO regime would be an unwarrantedexercise because unnecessary constitutional pronouncements should generally be avoided (Phillips v.

Nova Scotia (Commission ofInquiry into the Westray Mine Tragedy), (SCC), [1995] 2 S.C.R. 97, at paragraphs 6–11; Ishaq v. Canada (Citizenshipand Immigration), 2015 FC 156, [2015] 4 F.C.R. 297, at paragraph 66). [20] Second, there is insufficient evidence in the record to fully assess all of the consequences of a country being designated undersection 109.1. As the Supreme Court stated in Mackay v. Manitoba, (SCC), [1989] 2 S.C.R. 357, at pages 361–362: Charter decisions should not and must not be made in a factual vacuum.

To attempt to do so would trivialize the Charter and inevitablyresult in ill-considered opinions. The presentation of facts is not, as stated by the respondent, a mere technicality; rather, it is essential toa proper consideration of Charter issues.… Charter decisions cannot be based upon the unsupported hypotheses of enthusiastic counsel. For instance, there is not enough evidence to assess the potential disadvantages for DCO claimants who are ineligible for a work permituntil 180 days after their claim is referred to the RPD.

G.S. states in his affidavit that he is upset that he cannot get a work permit andthat, since social assistance is insufficient, he and C.S. needed to take unsafe jobs and work harder than their Canadian colleagues for thesame amount of pay. However, this evidence alone is not sufficient to prove that either

section 7 or subsection 15(1) of the Charter isviolated by subsection 206(2) of the Regulations. Furthermore, G.S.’s affidavit was only filed on October 21, 2014, and this was the firstindication that subsection 206(1) of the Regulations could be in peril. The respondents were required to serve their own further affidavitsone month later on November 21, 2014, and they did not have a reasonable opportunity to mount a

section 1 Charter defence to thispotential challenge prior to the hearing of this matter. [21] Third, I am not convinced that this is a suitable case to decide whether the abbreviated timelines for DCO claimants arenecessarily invalid or unconstitutional. Despite the applicants’ arguments to the contrary, the abbreviated timelines do not appear to beinsurmountable. The difference between the hearing dates for DCO claimants and non-DCO claimants is not inordinate, and the RPD

decisions in respect of the individual applicants in this case show that they, as DCO claimants, were able to meet the deadlines. C.S. mentioned during his re-examination that he would have liked more time so that some evidence from Hungary could arrive, but that never formed a basis for his application.

The individual applicants did not ask to adjourn their hearings before the RPD; they were able to file substantial documentation (including medical reports); they presented their cases fully; and they did not allege in their applications for leave and for judicial review in this Court that they had insufficient time to prepare for the hearings before the RPD.

The applicants have presented evidence that some types of claimants may have a harder time than others meeting short deadlines; yet, a speedier process could also be considered a benefit to those claimants who are ultimately successful, since it could be stressful for genuine refugees to wait for years before their status is finally settled.

These issues would be better decided in a case where the abbreviated timelines have actually made a difference to the applicants and the mechanisms for extending deadlines and re-opening cases have actually been tested. [ 22 ] Fourth, none of the individual applicants are yet affected by the 36-month ban on making a pre-removal risk assessment (PRRA) application under paragraphs 112(2)( b.1 ) and 112(2)(

c) of the IRPA. The constitutionality of that ban should be decided in a factual matrix where the issue is directly and squarely raised. This is not the case here. The Court’s decision in Peter v. Canada (Public Safety and Emergency Preparedness) , 2014 FC 1073 , 84 Admin. L.R. (5th) 1 ( Peter ), did not directly assess that ban; the decision in Peter was concerned with only the 12-month PRRA ban vis-à-vis

section 7 of the Charter . Furthermore, the constitutionality of the ban against bringing a PRRA application until 36 months have passed, at least vis-à-vis

section 7 of the Charter, will be considered by the [Federal] Court of Appeal on the appeal of Atawnah v. Canada (Public Safety and Emergency Preparedness) , 2015 FC 774 . [ 23 ] In short, therefore, it is not appropriate in this case to assess the constitutionality of the DCO regime as a whole or, in particular,

section 109.1, since any declaration that it is invalid would have effects that exceed the scope of the present applications and the evidentiary record. IV. Issues [ 24 ] Since

section 109.1 of the IRPA is not directly in issue on these applications, the issues to be addressed are as follows: 1. Does CARL have standing as a public interest litigant? 2. Should the impugned affidavits be struck out? 3. Does paragraph 110(2)( d.1 ) of the IRPA infringe subsection 15(1) of the Charter ? 4. Does paragraph 110(2)( d.1 ) of the IRPA infringe

section 7 of the Charter ? 5. If Charter rights are infringed, is paragraph 110(2)( d.1 ) of the IRPA justified by

section 1 of the Charter ? 6. If paragraph 110(2)( d.1 ) of the IRPA is unconstitutional, what is an appropriate remedy? 7. What questions, if any, should be certified? V.

Does CARL have standing as a public interest litigant? [ 25 ] The parties acknowledge that the Court must consider three factors when deciding whether to grant public interest standing: “(1) whether there is a serious justiciable issue raised; (2) whether the plaintiff has a real stake or a genuine interest in it; and (3) whether, in all the circumstances, the proposed suit is a reasonable and effective way to bring the issue before the courts” ( Canada (Attorney General) v. Downtown Eastside Sex Workers United Against Violence Society , 2012 SCC 45 , [2012] 2 S.C.R. 524 ( Downtown ), at paragraph 37 ). A.

CARL’s arguments [ 26 ] CARL argues that all of the principles of public interest standing are in its favour: there is no risk to scarce judicial resources because its application has already been consolidated with that of Y.Z., G.S. and C.S.; its involvement in the case has sharpened the arguments and ensured that they would be thoroughly presented; and it would be beneficial for the rule of law for it to be granted standing since constitutional cases are complex and CARL could carry on with the case if for any reason the individual applicants cannot. [ 27 ] In addition, CARL says that all of the factors set out in Downtown support a grant of public interest standing.

The respondents concede that there is a serious justiciable issue, and CARL contends that it has a real stake in the litigation. Relying on the affidavit of Mitchell Goldberg, CARL submits that it is an association of lawyers and academics with an interest in legal issues relating to refugees, asylum seekers, and the rights of immigrants, and one of its key mandates is to ensure that the human rights of refugees and vulnerable migrants are protected.

Indeed, they raised their concerns about the DCO regime with Parliament while it was debating Bill C-31, which became the Protecting Canada’s Immigration System Act , S.C. 2012, c. 17 (PCISA). These interests are broader than those held by the individual applicants, and by having standing CARL says it has been able to raise the prejudicial consequences of the DCO regime that go beyond those that have affected the individual applicants.

Furthermore, it has participated in the matter from the outset, thus demonstrating its concern, and its standing has not altered the timelines in any way. [ 28 ] CARL contends that granting it standing alongside three individual applicants is a reasonable and effective means of bringing the issues in this case before the Court. CARL says the Court has already recognized that these issues are better litigated in one robust proceeding by consolidating Court File Nos. IMM-3700-13 and IMM-5940-14.

Giving CARL standing promotes the continuity and viability of the present litigation while allowing it to present the full spectrum of issues raised by the DCO regime. Indeed, CARL points out that there is no guarantee that any of the individual applicants would be able or willing to pursue an appeal if their applications are not successful. The matter could very well become moot if their applications for judicial review of their respective RPD decisions succeed.

Furthermore, the stays of removal the individual applicants have obtained only apply until the end of the present proceeding, and there is no guarantee that the Federal Court of Appeal would continue them.

[29] Applying the considerations set out in Downtown, at paragraph 51, CARL submits that it clearly has the resources and expertiseto bring this matter forward, and its members have already volunteered hundreds of hours to this litigation.

It will not cost any additionaljudicial resources by affording CARL standing and it would forestall duplicative litigation and minimize the risk of inconsistent results.Furthermore, the DCO provisions affect significant numbers of refugee claimants; many of them lack the resources to challenge thelegislation themselves and their interests could not be adequately advanced by the individual applicants alone. [30] CARL disputes the respondents’ argument that many other applicants, including G.S. and C.S., came forward without CARL’sassistance.

G.S. and C.S. relied wholly on the record prepared by CARL and Y.Z., so it is misleading to say that they brought theirapplication “without CARL”. As for other potential litigants, the applicants note the respondents have been promptly deporting them andchallenging their arguments on technical grounds, trying to impose a complex and onerous procedure for bringing the issues to this Courtthat would exhaust the resources of many litigants and expose them to a greater risk of deportation.

There is also no conflict betweenCARL’s interests and those of the individual applicants, so CARL submits it should be granted standing. B. Respondents’ arguments [31] The respondents argue that CARL has no direct interest in this matter and should be denied public interest standing. Although therespondents concede that there is a serious justiciable issue, they say CARL can offer no useful or distinct perspective on that issuebecause its arguments are identical to those put forward by the individual applicants and it seeks the same relief.

The respondents sayCARL’s assertion that it raises distinct issues is nothing but a smokescreen to justify its participation. [32] Indeed, the respondents argue that litigation by individual litigants is an entirely effective means of raising the issues proposedby CARL. Even CARL acknowledges that there are potentially hundreds of such litigants, and there are already three of them in thismatter alone, all of whom have received stays of removal ensuring that their applications will not become moot. In the respondents’view, adding another useless party to the matter only increases cost and inconvenience.

Although CARL says it helped prepare therecord, the respondents argue that it did not need party status to do that and there is no evidence about the degree to which it helped. Therespondents submit that, all other things being equal, the parties with standing as of right should be preferred to CARL. [33] Furthermore, the respondents submit there is no evidence that other applicants do not have the resources to bring their ownchallenges, nor does CARL’s participation preclude those who would from making parallel applications which could create conflictingjurisprudence.

The respondents also contend that CARL has mischaracterized the respondents’ position in other cases. The respondentsdid not argue that applicants must pursue a futile appeal to the RAD but, instead, disputed only an attempt to challenge the absence of anappeal right through a judicial review of a RPD decision. Had those applicants commenced a separate application raising theconstitutional issues alone, the respondents would have had no objection. [34] The respondents also point out that CARL has participated in most of its cases only as an intervener.

Although CARL did haveparty status in Canadian Doctors, the respondents say that case is distinguishable since: (1) the impugned provisions only refer tonationals of DCO countries, and there is no other affected category of persons who are not before the Court; (2) there is no evidence thatCARL made concerted efforts to recruit other litigants; (3) persons affected by the impugned provisions have already had their claimsdenied, so they need not fear vindictiveness from the government if they challenge the constitutionality of the DCO regime; and (4) theevidentiary record compiled in Canadian Doctors exceeded what an individual refugee claimant could be expected to assemble, but inthis case G.S. and C.S. were able to compile a virtually identical record without CARL’s help. [35] The respondents also complain that it was improper for CARL to file its notice of application along with Y.Z. because the onuswas on CARL to prove that it should get standing.

The respondents ask the Court to discourage this conduct since it unfairly put theburden upon the respondents to bring a motion to deny public interest standing. Although that motion was ultimately dismissed for delay,the respondents were nonetheless permitted to raise the same arguments at the hearing. They submit that it would be unfair to have theirmotion deferred to the application judge only to have it dismissed for mootness, and ask for a ruling on the merits. C.

Analysis [36] The respondents argue that CARL circumvented the Federal Court’s procedural rules by including itself as a named party whenY.Z. brought his application. This argument has no merit. Subsection 18.1(1) of the Federal Courts Act, R.S.C., 1985, c.

F-7 (FederalCourts Act), permits an application for judicial review by “anyone directly affected by the matter in respect of which relief is sought”,and the [Federal] Court of Appeal has said that this wording “is broad enough to encompass applicants who are not directly affectedwhen they meet the test for public interest standing” (Canada (Royal Canadian Mounted Police Public Complaints Commission) v.Canada (Attorney General), 2005 FCA 213, [2006] 1 F.C.R. 53, at paragraph 56).

Standing is asserted whenever a party applies forjudicial review, and the Federal Courts Rules, SOR/98-106, do not require any party to prove its standing by a preliminary motion. [37] There is also no reason why they should be required to do so. CARL bears the onus to show that it has standing, but this is true ofall litigants whether they assert private or public interests (Downtown, at paragraph 18). That does not mean they must also prove thatthey have standing on a preliminary basis. Such a rule would be contrary to the guidance in Finlay v.

Canada (Minister of Finance), (SCC), [1986] 2 S.C.R. 607 (Finlay), at pages 616–617, where the Supreme Court opined that there may be occasionswhere standing cannot be determined without a full hearing; it “depends on the nature of the issues raised and whether the court hassufficient material before it, in the way of allegations of fact, considerations of law, and argument, for a proper understanding at apreliminary stage of the nature of the interest asserted” (Finlay, at page 617). Those issues are even more pronounced for judicial reviewapplications in this Court; such applications are meant to be

summary procedures that focus “on moving the application along to thehearing stage as quickly as possible” (David Bull Laboratories (Canada) Inc. v. Pharmacia Inc., (FCA), [1995] 1 F.C.588 (C.A.), at pages 596–598; IRPA, paragraph 74(c); Federal Courts Act, subsection 18.4(1)). Preliminary determinations are generallydiscouraged, not only on questions of standing but also on any other question (Apotex Inc. v. Canada (Governor in Council), 2007 FCA374, 76 Admin. L.R. (4th) 20, at paragraph 13; JP Morgan Asset Management (Canada) Inc. v.

Canada (National Revenue), 2013 FCA250, [2014] 2 F.C.R. 557, at paragraphs 47–48). [38] There is therefore nothing improper about the way that CARL has asserted standing, nor is it unfair to recognize that granting

CARL standing at this stage would not cause any prejudice to the respondents. All the issues presently before the Court would need to be considered even if Y.Z., G.S., and C.S. were the only applicants. In similar circumstances in Bedford v.

Canada (Attorney General) , 2012 ONCA 186 , 109 O.R. (3d) 1, at paragraph 50 , varied on other grounds 2013 SCC 72 , [2013] 3 S.C.R. 1101, the Ontario Court of Appeal declined to even address standing since it was irrelevant. [ 39 ] The respondents have requested a ruling on the merits of their motion though, and I have concluded that public interest standing should be afforded to CARL in this case since this will permit reasonable and effective litigation of the issues raised by these applications. [ 40 ] The respondents concede that there is a serious justiciable issue, and I agree.

The constitutionality of paragraph 110(2)( d.1 ) of the IRPA is certainly “a ‘substantial constitutional issue’ and an ‘important one’ that is ‘far from frivolous’ ” ( Downtown , at paragraph 54). [ 41 ] As to whether CARL has a real stake or a genuine interest in this matter, “this factor reflects the concern for conserving scarce judicial resources and the need to screen out the mere busybody.… [and] is concerned with whether the plaintiff has a real stake in the proceedings or is engaged with the issues they raise” ( Downtown , at paragraph 43). CARL is not a mere busybody.

CARL is an organization which includes many experienced immigration and refugee lawyers, and one of its mandates is to “advocate with respect to legal issues related to refugees, asylum seekers, and immigrants” (affidavit of Mitchell Goldberg (15 September 2014), at paragraph 4 (Goldberg affidavit)). CARL raised concerns about the DCO regime before Parliament when the PCISA was being debated.

Moreover, CARL has fully participated in this matter from the outset, thus demonstrating its interest. [ 42 ] Granting public interest standing to CARL is also a reasonable and effective way by which the constitutional concerns about paragraph 110(2)( d.1 ) of the IRPA can be brought before the Court. CARL’s resources and expertise are such that the constitutional issues have been presented in a concrete factual setting.

Although the existence of other potential DCO claimants is a relevant consideration, CARL has joined its application with three private litigants and thus ensured that judicial resources will not be wasted ( Downtown , at paragraph 50). Also, the practical prospects of other claimants bringing the matter to Court at all or by equally reasonable and effective means needs to be considered in light of the fact that many potential claimants could be deported before they even try to challenge the legislation (see IRPA, subsection 48(2); affidavit of James Gildiner (30 September 2014)).

Most refugee claimants arrive with little money and lack the financial means to litigate complex constitutional issues; whereas CARL has secured test case funding from Legal Aid Ontario (Goldberg affidavit, at paragraphs 15 and 20; affidavit of Dolores De Rico (23 June 2013), at paragraph 3).

CARL will be in a good position to continue this litigation in the event that Y.Z., G.S., or C.S. should be unable or unwilling to do so. [ 43 ] In addition, CARL and two other organizations were granted public interest standing by this Court in Canadian Doctors , where my colleague Madam Justice Anne Mactavish remarked as follows with respect to CARL as one of the three organizations which sought standing in that case [at paragraphs 347–348]: The three applicant organizations seeking public interest standing in this case are credible organizations with demonstrated expertise in the issues raised by these applications.

They are represented by experienced counsel, and have the capacity, resources, and ability to present these issues concretely in a well-developed factual setting: Downtown Eastside , above, at paragraph 51. This suggests that this litigation constitutes an effective means of bringing the issues raised by the application to court in a context suitable for adversarial determination. CARL’s membership has extensive experience in refugee law, and the organization is an active advocate for refugees.

Although a relatively new organization, it has already been granted intervener status in at least three cases before the Supreme Court of Canada: Downtown Eastside ; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559; and Ezokola v. Canada (Citizenship and Immigration) , 2013 SCC 40 , [2013] 2 S.C.R. 678. VI. The affidavit evidence [ 44 ] The parties have filed more than two dozen affidavits which contain written testimony and many exhibits.

The respondents seek to strike out some of the affidavits, or portions thereof, filed by the applicants. [ 45 ] Before addressing the merits of the respondents’ motion, it is useful to summarize some of the evidence presented by the parties. A. The applicants’ affidavit evidence [ 46 ] Y.Z. is one of the applicants in IMM-3700-13. He testifies that he fears persecution in Croatia because he is a Serb and because he is gay.

His refugee claim was rejected by the RPD, but he maintains that he may be attacked or killed if he lived openly as a gay man in Croatia and that he would either kill himself or die a “slow death” if he has to hide his orientation. He has started having relationships in Canada and is fearful and anxious whenever he thinks he might be sent back to Croatia. He presents some recent evidence about conditions in Croatia by way of an exhibit. [ 47 ] G.S. is one of the applicants in Court File No. IMM-5940-14.

He is a gay man from Hungary whose refugee claim was refused by the RPD on the basis that the Hungarian state could protect him and his partner, C.S. He testified in his original affidavit, dated September 3, 2014, that his family has since discovered he is gay and his brothers-in-law say they will kill him for shaming them. In his further affidavit, dated October 21, 2014, G.S. states he is upset that he has less procedural rights than other refugee claimants just because he is from Hungary.

Although the removal order against G.S. and C.S. was eventually stayed by this Court, G.S. says it was the worst thing to happen to them since coming to Canada. He was acutely afraid of being returned to Hungary, and he and his partner could not sleep for days. The refugee process overall has been very frustrating for them, and G.S. states the CBSA officials “smirked” when they learned that he and his partner were from Hungary. G.S. also claims that two of his friends who lived in the same building as him in Hungary had the same counsel and obtained refugee protection on essentially the same evidence.

In addition, G.S. is upset that he cannot get a work permit, since social assistance is insufficient. He and his partner both had comfortable careers in Hungary, but without work permits they have been forced to take unsafe jobs and work up to three times harder than their Canadian colleagues for the same amount of pay. G.S. also says that he and C.S. want the opportunity to contribute to Canadian society. Living in Canada has brought him and his partner a sense of dignity he never thought possible, and he says having that taken away would be torture.

[48] C.S. is the other applicant in Court File No. IMM-5940-14. He is a gay man who is originally from Romania; he is also a citizenof Hungary. He testifies that he could not live openly with G.S. in either Romania or Hungary because they would both be in danger ofviolent persecution. Being able to live together as a family in Canada has been an incredibly positive experience for them.

He says thathe is frustrated and dismayed with the refugee process in Canada, and enduring the CBSA’s attempts to deport him was one of the moststressful experiences of his life. [49] Mitchell Goldberg is the vice-president of CARL. He says CARL’s membership is composed of many experienced refugeelawyers and academics, and it has been granted status as a party or an intervener in many cases. He notes that Canada’s immigration andrefugee system has been undergoing significant reforms, and CARL made submissions to the Standing Committee on Immigration asParliament debated what would become the PCISA.

DCOs have always been a central concern, creating a regime which CARL fears hascreated a real risk to the lives, liberty and security of its membership’s clients. He also testifies that it is difficult for claimantsthemselves to challenge the constitutionality of this legislation, since they lack sufficient resources and face deportation as soon as theirclaims are denied. Indeed, only Y.Z. had been willing to challenge the legislation at the time the application was initiated. While Y.Z.may be able to raise the ground of discrimination based on sexual orientation or ethnicity, Mr.

Goldberg says that only CARL canrepresent some of the other interests at stake, such as those of women fleeing gender-based persecution. CARL is also well positioned tolead evidence and could pursue an appeal if the case becomes moot for Y.Z. [50] Dolores De Rico is the co-director and co-founder of the FCJ Refugee Centre, which provides shelter and assistance to refugeewomen and their children. She is also the president of the Canadian Council for Refugees, and has worked a lot with refugees.

Shetestifies that refugees often arrive with very little money and cannot hire lawyers without the assistance of legal aid. [51] Christopher Anderson is an assistant professor in the Department of Political Science at Wilfrid Laurier University, and he saysthat he has spent a lot of time researching Canadian immigration and refugee policy. His affidavit, dated June 17, 2013, focuses onidentifying historical trends animating Canada’s immigration and refugee policy.

In his view, Canada’s desire to attract some immigrantshas always been accompanied by a determination to exclude others, and negative stereotypes often inform which groups are excluded(including refugees and asylum-seekers). At times, this was based on explicit racial discrimination, such as the head tax on Chineseimmigrants. Canada has discriminated against other groups as well, such as Japanese and East Indian immigrants.

This was not alwaysdone through legislation, and Professor Anderson says that the trend has been to assign extensive regulatory powers to the executive,thus making immigration law less subject to parliamentary and public scrutiny.

This, he says, is exemplified by the restrictive measuresused by Canada to exclude Armenians fleeing genocide around the time of World War I, and to exclude Jewish people in the yearsleading up to World War II. [52] After the Holocaust, it became harder for Canada to defend explicitly racist policies, but Professor Anderson states that Canadasimply masked the debate over race within discourse that rarely mentioned which groups would be restricted yet ensured some would be.Canada kept discriminating by vesting wide discretions in officials to establish geographical tiers of preferred immigrants. Mr.

Andersonsays the last vestiges of formal discrimination were only removed in 1967 and Canada eventually made a formal commitment to equalitywhen it enacted the Immigration Act, 1976, S.C. 1976-77, c. 52, paragraph 3(f). As explicit racial discrimination diminished though,Professor Anderson claims that security and abuse concerns arising from the Cold War created barriers for refugees fleeing politicaloppression. Indeed, he opines that part of the reason Canada did not initially sign the United Nations Convention Relating to the Status ofRefugees, 28 July 1951, [1969] Can. T.S.

No. 6 (Convention) was because it did not want to create rights which undesirable non-citizenslike communists could claim against the state to avoid deportation. Refugee claims were dealt with informally, but a formal process waseventually established because there were fears the system could otherwise be abused. Fear of abuse is also the reason claimants were notentitled to an oral hearing until the Supreme Court intervened in Singh et al. v. Minister of Employment and Immigration, (SCC), [1985] 1 S.C.R. 177.

Professor Anderson says that the security/abuse dynamic continues to inform refugee policy today, from theimposition of visa requirements to the way that the government handles irregular arrivals. [53] Cathryn Costello is a law professor at the University of Oxford who has worked in the area of refugee law since the 1990s. Shepurports to be an expert in international and European refugee law, and her affidavit assesses the DCO regime in light of her knowledgeabout the safe country of origin (SCO) provisions in European Union (EU) asylum law.

While the original EU directive on SCOs seemedprocedurally weak, Professor Costello says that it cannot be read literally because: EU directives require national implementation; partsof the directive and implementing domestic legislation have been struck down; and the consequences of designating a country as safe cannever be such that they deprive an applicant of domestically-required fair procedures and an effective judicial remedy.

In 2013, ProfessorCostello notes that the EU adopted a recast directive on SCOs which now reflects the basic entitlement to an appeal with suspensiveeffect, and the exceptions are accompanied by important safeguards such as a right to request suspensive effect. The recast directive alsoensures that the SCO concept is primarily a basis only for accelerated procedures, and cannot be used to consider an applicationunfounded without an individual assessment.

In determining whether a country is a SCO, reference must be had to a range of sources,and the application of the SCO concept remains rebuttable in the circumstances of an individual case. Nonetheless, she says that theSCO mechanism is flawed and likely to lead to poor decisions and refoulement. [54] Professor Costello also assesses the DCO regime, and concludes that it is even worse than the SCO regime in the EU.

She saysthat the quantitative criteria for designating a country are dubious, especially insofar as they include abandoned and withdrawn claimswithin their calculations; and it is problematic that they are based on past refugee determinations and not on present or anticipatedcountry conditions. As for the qualitative criteria, Professor Costello states that they are general and do not focus enough on whether acountry is likely to produce refugees.

The procedure for designating a country is problematically secret, and Professor Costello opinesthat it should be open to challenge in a court of law and reviewable in light of changing country conditions. She also says that theprocedural consequences are too adverse, especially insofar as claimants are deprived of an appeal with suspensive effect; that, ProfessorCostello says, is a basic requirement of a fair asylum procedure.

She concludes that the DCO regime will have a significant deleteriouseffect on the assessment of asylum claims. [55] Sean Rehaag is an associate professor at Osgoode Hall Law School who specializes in immigration and refugee law and itsintersection with gender and sexuality. In an affidavit dated June 12, 2013, he attacks the use of the quantitative trigger permittingdesignation of a country. He says that statistics on outcomes in refugee determinations from a given country can vary substantially overtime, due to changing country condition evidence and random factors.

He points out that some countries which meet the quantitative

criteria for designating a country in one year can have high recognition rates in subsequent years. North Korea, for instance, met the quantitative criteria in 2008, despite the fact that in most years the vast majority of claims from that country which were decided on their merits were allowed. He says these problems are further compounded by including abandoned and withdrawn claims when calculating the rejection rate; this can give the impression that claimants from a country are often being rejected when it may just be that the I.R.B. has not scheduled many claims to be heard on their merits.

Another problem is that a country may be safe for many claimants but unsafe for particular subsets of claimants. He specifically points to claims based on gender and sexual orientation; those claims, he says, are generally more likely to succeed than other types of claims from the same country of origin, and such claimants can often come from countries which typically do not produce many refugees. Lastly, Professor Rehaag says that the I.R.B. data used to make the calculations cannot be counted on to reliably record demographic information because that is not its purpose.

He says it may not properly account for claimants who are nationals of multiple countries, or who are determined by the RPD to be from countries other than the one they claimed. [ 56 ] Professor Rehaag swore another affidavit on May 20, 2014, which took into account the I.R.B.’s Country Report for all decisions rendered in 2013. He opined that it did not affect his analysis. He swore a supplementary affidavit on December 8, 2014, to disclose that he is a member of CARL and is on its litigation committee.

When he was cross-examined though, he clarified that he was not involved in CARL’s decision to join the present applications. [ 57 ] Julianna Beaudoin has a PhD in anthropology and completed her dissertation on Roma in Canada and the various issues they face. In her first affidavit, dated June 13, 2013, she says that Roma people are often portrayed and treated negatively, and that Canadians lack accurate information about people with this ethnicity.

Because there is so little exposure to Roma, she opines that it is problematic when government officials say Roma people make “bogus” claims or are undeserving of refugee protection. She also opines that the DCO regime should not count abandoned and withdrawn claims as failures, since this ignores the rate at which claims are accepted by RPD members. In particular, she says there may be many reasons why a claim might be withdrawn or abandoned which are unrelated to whether a person would face persecution in their country of origin.

She points out that some Roma are illiterate even in their native language and it can be hard to correct misinformation that spreads through their communities. She says she interviewed many Romani immigrants for her dissertation, and some of the reasons claims have bee

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