2019 FCA 223, 2019 FCA 223

A-153-18 2019 FCA 223 Reem Yousef Saeed Kreishan, Giovani Acevedo Arango (aka Giovanni Acevedo Arango), Cristian Camilo Acevedo Gomez, Mohammed Zakir Hossain, Suad Sulieman Odeh Abu Shabab, Abdalla Mahmoud Aboushabab, Maha Mahmoud Mohamed Oudah, Aly Mahmoud Mohamed Oudah, Mohamed Mahmoud Oudah, Tagi Mahmoud Mohamed Aboshabab, Huda Marwan Kashtem, Mhd Nazir Deirani, Bara’a Derani ( Appellants ) v. The Minister of Citizenship and Immigration ( Respondent ) Indexed as: Kreishan v.

Canada (Citizenship and Immigration) Federal Court of Appeal, Webb, Rennie and Laskin JJ.A.—Toronto, October 2, 2018; Ottawa, August 19, 2019.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Appeal from Federal Court decision dismissing appellants’ judicial reviews of Immigration and Refugee Board, Refugee Appeal Division (RAD) decisions — RAD dismissing appellants’ appeals of rejection by Refugee Protection Division (RPD) of their claims for asylum — Under Safe Third Country Agreement (STCA) between Canada, United States, responsibility for refugee claimants arriving from U.S. at Canadian land border port of entry falling to the U.S. as first “safe country” — However, Canada retaining responsibility for those having family members in Canada or who are unaccompanied minors (STCA-excepted asylum seekers) — Appellants STCA-excepted asylum seekers — Allowed into Canada after asserting having family members in Canada — RAD dismissing appeals on basis appellants having no right of appeal under Immigration and Refugee Protection Act ( Act ), s. 110(2) (d) (RAD bar) — Appellants contending RAD bar infringing Canadian Charter of Rights and Freedoms ( Charter ), s. 7 — Whether Act, 110(2)(

d) infringing Charter, s. 7 — Federal Court erring in assuming s. 7 engaged — Courts should not assume life, liberty or security negatively affected or limited by legislation in question — Courts having to examine nexus between impugned measure, deprivation — Nexus asserted herein was that inability to appeal to RAD increasing risk of refoulement, psychological stress — No nexus between RAD bar, any psychological harm experienced by appellants — No basis to interfere with Federal Court’s conclusions in this respect — Charter not requiring that appellate tribunal be put in place — No constitutional requirement for government to act affirmatively to ensure that each person enjoy minimum of life, liberty, security of person — S. 7 requiring deprivation of these interests to be engaged — Absence of measures reducing existing risk of harm such as refoulement, failure to extend appeal rights to RAD to encompass others not amounting to deprivation within meaning of s. 7 — No special circumstances herein requiring affirmative obligation on government — Appeal dismissed.

Constitutional Law — Charter of Rights — Life, Liberty and Security — Under Safe Third Country Agreement (STCA) between Canada, United States, responsibility for refugee claimants arriving from U.S. at Canadian land border port of entry falling to the U.S. as first “safe country” — However, Canada retaining responsibility for those having family members in Canada or who are unaccompanied minors (STCA-excepted asylum seekers) — Appellants STCA-excepted asylum seekers — Allowed into Canada after asserting having family members in Canada — Appellant’s refugee claims rejected by Immigration and Refugee Board, Refugee Protection Division (RPD)— Refugee Appeal Division (RAD) dismissing appeals on basis appellants having no right of appeal under Immigration and Refugee Protection Act ( Act ), s. 110(2) (d) (RAD bar) — Appellants contending RAD bar infringing Canadian Charter of Rights and Freedoms ( Charter ), s. 7 — Arguing, inter alia: that their Charter , s. 7 interests engaged by risk of refoulement at end of refugee determination process and by psychological stress associated with absence of right of appeal; that RAD bar arbitrary, overbroad; that Federal Court erring in analysis of their s. 7 interests — Whether Act, s. 110(2)(

d) infringing Charter , s. 7 — S. 110(2)(

d) not engaging Charter , s. 7 — Appellants needing to show that their rights under s. 7 engaged by RAD bar, that deprivation not in accordance with principles of fundamental justice — Federal Court erring in assuming s. 7 engaged — Courts should not assume life, liberty or security negatively affected or limited by legislation in question — Scope, substance of s. 7 interests matters of discrete, independent jurisprudential analysis — Courts having to examine nexus between impugned measure, deprivation — Nexus herein critical — Failure to scope out precise nature of deprivation frustrating second stage of s. 7 analysis — Nexus asserted herein was that inability to appeal to RAD increasing risk of refoulement, psychological stress — No nexus between RAD bar, any psychological harm experienced by appellants — No basis to interfere with Federal Court’s conclusions in this respect — Stress associated with fact some claimants only having one chance to establish claim not engaging s. 7 — Psychological stress inherent in refugee determination process — S. 7 interests of all claimants, regardless of underlying administrative basis of their rejection, protected at removal stage — Charter not requiring that appellate tribunal be put in place — No constitutional requirement for government to act affirmatively to ensure that each person enjoy minimum of life, liberty, security of person — S. 7 requiring deprivation of these interests in order to be engaged.

Practice — Notice of constitutional question — Federal Courts Act , s. 57 requiring that notice of constitutional question be served on all Attorneys General at least ten days before hearing of appeal — Notice herein served less than ten days prior to hearing of appeal — While Court exercising discretion to hear appeal on conditional basis, that decision not lightly made — Factors in Canada (Attorney General) v.

Larkman relating to requests for extensions of time not dispositive — Those factors addressing interests of, potential prejudice to, parties to proceeding — Notice of constitutional question, by contrast, having public dimension — Ensuring that law not declared unconstitutional unless opportunity given to government to support law’s validity. This was an appeal from a decision of the Federal Court dismissing the appellants’ parallel judicial reviews of decisions by the Immigration and Refugee Board, Refugee Appeal Division (RAD).

The RAD had dismissed the appellant’s appeals of decisions by the Board’s Refugee Protection Division (RPD) rejecting their claims for asylum. Under the safe third country concept, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. The Safe Third Country Agreement (STCA) between Canada and the United States recognizes, inter alia , the legal obligations of both countries under the principle of non- refoulement prohibiting the removal of refugees to a territory where they are at risk of human rights violations.

Under the STCA, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection in Canada. Responsibility over their claim falls to the United States, the first

“safe country” in which they arrived. Canada retains responsibility for determining the refugee status of claimants arriving from the United States who have family members in Canada or who are unaccompanied minors. The appellants were STCA-excepted asylum seekers who, after transiting through the United States, presented claims for protection at a Canadian land border port of entry. They were allowed into Canada after asserting that they had family members in Canada. The RAD dismissed the appeals on jurisdictional grounds, as under paragraph 110(2) (

d) of the Immigration and Refugee Protection Act ( Act ) the appellants had no right of appeal (RAD bar). The appellants contended that the RAD bar infringed

section 7 of the Canadian Charter of Rights and Freedoms . They argued, inter alia : that their

section 7 interests were engaged by the risk of refoulement at the end of the refugee determination process and by the psychological stress associated with the absence of a right of appeal; that the substantive protections of

section 7 were violated by the RAD bar on the basis that it is arbitrary and overbroad in relation to its purpose; and that the Federal Court erred in law in the analysis of their

section 7 interests. They also contended that a second stage appeal for failed claimants is necessary to ensure that errors of fact or law are corrected, so as to minimize the risk of refoulement . Finally, the appellants argued that in between the beginning of the refugee claim adjudication process, and at the removal stage, the obligation not to refoule continues, with the result that

section 7 is engaged by the channelling of the appellants into a process which does not minimize the risk of refoulement . At issue was whether paragraph 110(2) (

d) of the Act infringes

section 7 of the Charter . Held , the appeal should be dismissed. A preliminary matter was first addressed with respect to the notice of constitutional question requirement in

section 57 of the Federal Courts Act . Such a notice must be served on all Attorneys General at least ten days before the hearing of the appeal. In this case, it was served less than ten days prior to the hearing of the appeal. While the Court exercised its discretion to hear the appeal on a conditional basis, that decision was not lightly made. It observed that the factors in Canada (Attorney General) v. Larkman relating to requests for extensions of time are not dispositive. Those factors are designed to address the interests of, and potential prejudice to, the parties to a proceeding.

The notice of constitutional question, by contrast, has a public dimension. It ensures that a law is not declared unconstitutional unless the fullest opportunity has been given to the government to support the law’s validity. It is the potential for prejudice to that public interest that is paramount. The fact that immigration is a head of exclusive federal legislative competence does not mean that the provinces are unlikely to have an interest. Paragraph 110(2) (

d) of the Act does not engage

section 7 of the Charter . To establish an infringement of

section 7 , the appellants needed to show that their rights under

section 7 were engaged by the RAD bar, and then that the deprivation was not in accordance with the principles of fundamental justice. In the first stage of this analysis, the appellants’ argument on

section 7 engagement was limited to security of the person. The Federal Court had assumed, but did not decide, that

section 7 was engaged. This was an error. A court considering whether a law infringes

section 7 should not simply assume that life, liberty or security of the person is negatively affected or limited by the legislation in question. There are three reasons for this. The scope and substance of

section 7 interests are, in and of themselves, matters of discrete, independent jurisprudential analysis. Their ambit must be defined and calibrated having regard to the legislation or measure in question. Assuming engagement also leaps over analysis of causation. A court must examine the nexus between the impugned measure and the deprivation. Causation is not to be assumed. In this appeal, the nexus between the measure and the

section 7 interests is critical to the analysis. Finally, the failure to scope out the precise nature of the deprivation frustrates the second stage of the

section 7 analysis. It is impossible to consider whether the deprivation is in accordance with the principles of fundamental justice analysis without first understanding the nature of the rights engaged. The nexus or causal connection asserted in this appeal was that the inability to appeal to the RAD increased the risk of refoulement and psychological stress and anxiety. There was no nexus between the RAD bar specifically and any psychological harm experienced by the appellants. There was no basis to interfere with the Federal Court’s conclusions in this respect. Consistent with Medovarski v.

Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) , the stress associated with the fact that some claimants have only one chance to establish their claim and must seek recourse in the Federal Court does not engage

section 7 . Psychological stress is inherent in the refugee determination process. On the evidence, the psychological stress asserted here was indistinguishable from the ordinary stresses of deportation. Where Parliament’s intention is clear and there is no ambiguity, the Charter cannot be used as an interpretive tool to ascribe to the legislation a meaning which Parliament did not intend. There is no daylight between the concept of refoulement under the Convention and its clear and unambiguous expression in the IRPA .

The obligation not to refoule applies to individuals who have been adjudicated to be persons in need of protection. However, whether failed asylum claimants are being refouled is a debate, label or appellation of no consequence. This is because

section 7 re-engages at the removal stage of the process to protect against that risk. The

section 7 interests of all claimants, regardless of the underlying administrative basis of their rejection, are protected at the removal stage, whether by a PRRA, a request to defer removal or the right to seek a stay of removal in the Federal Court.

Section 7 is protected by the opportunity to seek a deferral of removal administratively, failing which, by the opportunity to seek a stay in the Federal Court. The Charter does not require that, in order to avoid the possibility of refoulement , an appellate tribunal be put in place. The appellants’ position that the advantages of the RAD ought to be extended to include STCA-excepted claimants rested on the presupposition that

section 7 imposed a positive obligation on Parliament to create the RAD in the first place. There is no constitutional requirement for the government to act affirmatively to ensure that each person enjoys a minimum of life, liberty and security of the person.

Section 7 requires a deprivation of these interests in order to be engaged. Consequently, the absence of measures aimed at reducing an existing risk of harm such as the risk of refoulement does not amount to deprivation within the meaning of

section 7 , and the failure to extend appeal rights to the RAD to encompass others is not a deprivation. Unless Parliament was otherwise constitutionally required to establish the RAD, neither the repeal nor limitation of the RAD amounts to deprivation within the meaning of

section 7 . There were no special circumstances herein that would have required an affirmative obligation on the government. STATUTES AND REGULATIONS CITED Balanced Refugee Reform Act , S.C. 2010, c. 8 . Bill C-11, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger , 37th Parl, 1 st Sess., 2001.

Bill C-31, Protecting Canada’s Immigration System Act, S.C. 2012, c. 17. 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. Criminal Code, R.S.C., 1985, c. C-46. Federal Courts Act, R.S.C., 1985, c. F-7, ss. 2, 57. Immigration Act, R.S.C., 1985, c. I-2. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3)(f), 25.1, 48(1),(2), 49(2)(c), 72, 98, 101(1), 102(1), 110, 111(1),112(2)(b.1), 115. Immigration and Refugee Protection Regulations, SOR/2002-227, ss. 159.3, 159.5, 159.91(1), 231. National Defence Act, R.S.C., 1985, c. N-5.

Order Fixing June 28, 2002 as the Date of the Coming into Force of Certain Provisions of the Act, SI/2002-97. 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,

preamble, Art. 1F. Protocol Relating to the Status of Refugees, 606 U.N.T.S. 267. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 33. CASES CITED APPLIED: Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350; Canada (Minister of Employment andImmigration) v. Chiarelli, (SCC), [1992] 1 S.C.R. 711, (1992), 90 D.L.R. (4th) 289; Singh v. Minister of Employmentand Immigration, (SCC), [1985] 1 S.C.R. 177, (1985), 17 D.L.R. (4th) 422; Febles v. Canada (Citizenship andImmigration), 2014 SCC 68, [2014] 3 S.C.R. 431; Housen v.

Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Medovarski v. Canada(Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration), 2005 SCC 51, [2005] 2 S.C.R.539; R. v. Michaud, 2015 ONCA 585, 127 O.R. (3d) 81; Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Sureshv. Canada (Minister of Citizenship and Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3; Begum v. Canada (Citizenship and Immigration),2018 FCA 181, [2019] 2 F.C.R. 488; Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307;Gosselin v.

Québec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429. DISTINGUISHED: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101. CONSIDERED: Németh v. Canada (Justice), 2010 SCC 56, [2010] 3 S.C.R. 281; Bains v. Canada (Minister of Employment and Immigration) (1990), 47Admin. L.R. 317, 109 N.R. 239 (F.C.A.); Huruglica v. Canada (Citizenship and Immigration), 2016 FCA 93, [2016] 4 F.C.R. 157;Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014]3 S.C.R. 176; Sachs v.

Air Canada, 2007 FCA 279, 367 N.R. 384; Mahjoub (Re), 2017 FC 334; B010 v. Canada (Citizenship andImmigration), 2015 SCC 58, [2015] 3 S.C.R. 704; New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, (1999), 216 N.B.R. (2d) 25; R. v. Moriarity, 2015 SCC 55, [2015] 3 S.C.R. 485; Jekula v. Canada(Minister of Citizenship and Immigration), (FC), [1999] 1 F.C. 266, (1999), 154 F.T.R. 268 (T.D.); Atawnah v.Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153, leave to appeal to S.C.C. refused, [2016] 2S.C.R. v; Scott v.

Canada (Attorney General), 2017 BCCA 422, 417 D.L.R. (4th) 733. REFERRED TO: Nadesan v. Canada (Citizenship and Immigration), 2015 FC 104; Ayala Sosa v. Canada (Citizenship and Immigration), 2014 FC 428;Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R. 519; British Columbia Securities Commission v. Branch, (SCC), [1995] 2 S.C.R. 3, (1995), 123 D.L.R. (4th) 462; Kanthasamy v. Canada (Citizenship and Immigration), 2015SCC 61, [2015] 3 S.C.R. 909; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121;Dunsmuir v.

New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Tapambwa v. Canada (Citizenship and Immigration), 2017 FC 522,[2017] 4 F.C.R. 458; Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156, [2015] 4 F.C.R. 297; Guindon v. Canada, 2015 SCC41, [2015] 3 S.C.R. 3; Eaton v. Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, (1997), 31 O.R. (3d)574; Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53, (1993), 102 D.L.R. (4th) 456; Beer v. Saskatchewan (Highwaysand Infrastructure), 2016 SKCA 24 , 476 Sask. R. 74; Alberta (Attorney General) v. Malin, 2016 ABCA 396 , 406D.L.R. (4th) 368; Ruffolo v.

Jackson, 2010 ONCA 472, 71 M.P.L.R. (4th) 43; Cambie Surgeries Corporation v. British Columbia(Attorney General), 2017 BCCA 287, 99 B.C.L.R. (5th) 338; Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020]1 F.C.R. 699, leave to appeal to S.C.C. refused, 38589 (July 11, 2019); R. v. Appulonappa, 2015 SCC 59, [2015] 3 S.C.R. 754; Ewert v.Canada, 2018 SCC 30, [2018] 2 S.C.R. 165; A.C. v. Manitoba (Director of Child and Family Services), 2009 SCC 30, [2009] 2 R.C.S.181; R. v. McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494; Canada (Minister of Transport, Infrastructure and Communities) v.

Farwaha, 2014 FCA 56, [2015] 2 F.C.R. 1006; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; United States of America v.Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; Rahaman v. Canada (Minister of Citizenship and Immigration), 2002 FCA 89, [2002] 3 F.C.537, leave to appeal to S.C.C. refused, [2002] 4 S.C.R. vii; R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292; Baker v. Canada (Minister ofCitizenship and Immigration), (SCC), [1999] 2 S.C.R. 817, (1999), 174 D.L.R. (4th) 193; Schreiber v. Canada(Attorney General), 2002 SCC 62, [2002] 3 S.C.R. 269; Hillier v.

Canada (Attorney General), 2019 FCA 44, 431 D.L.R. (4th) 556; BellExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Canada (Secretary of State) v. Luitjens (1991), 46 F.T.R.267, 15 Imm. L.R. (2d) 40 (F.C.T.D.); Shpati v. Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R.133; Baier v. Alberta, 2007 SCC 31, [2007] 2 S.C.R. 673; Dunmore v. Ontario (Attorney General), 2001 SCC 94, [2001] 3 S.C.R. 1016;ETFO et al. v. Her Majesty the Queen, 2019 ONSC 1308 , 144 O.R. (3d) 347; Flora v. Ontario Health Insurance Plan, 2008ONCA 538, 91 O.R. (3d) 412; Ferrell v.

Ontario (Attorney General) (1998), (ON CA), 42 O.R. (3d) 97, 168 D.L.R.(4th) 1 (C.A.); Lalonde v. Ontario (Commission de restructuration des services de santé) (2001), (ON CA), 56 O.R.(3d) 505 208 D.L.R. (4th) 577 (C.A.). AUTHORS CITED CIC Press Release, “Refugee Appeal Division Implementation Delayed”, 29 April 2002. Hathaway, James C. The Rights of Refugees Under International Law, Cambridge: Cambridge University Press, 2005. Heckman, Gerald. “Revisiting the Application of

section 7 of the Charter in Immigration and Refugee Protection” (2017), 68 U.N.B.L.J.312. Legomsky, Stephen H. “Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning ofEffective Protection” (2003), 15:4 Int. J. Refugee L. 567. Regulatory Impact Analysis Statement, SOR/2012-272, C. Gaz. 2012.II.2871. Stewart, Hamish. Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms, Toronto: Irwin Law, 2012. APPEAL from a Federal Court decision (2018 FC 481, 60 Imm. L .R. (4th) 257) dismissing the appellants’ parallel judicial reviews ofdecisions by the Refugee Appeal Division’s dismissing their appeals of decisions by the Refugee Protection Division of the Immigrationand Refugee Board rejecting their claims for asylum. Appeal dismissed. APPEARANCES Jared Will and Joshua Blum for appellant Huda Marwan Kashtem. Wennie Lee for appellant Reem Yousef Saeed Kreishan.

Ben Liston for appellants Suad Sulieman Odeh Abu Shabab, Abdalla Mahmoud Aboushabab, Tagi Mahmoud Mohamed Aboshabab. David W. Tyndale, Amy King and Meva Motwani for respondent. SOLICITORS OF RECORD Jared Will & Associates, Toronto, for appellant Huda Marwan Kashtem. Lee & Company, Toronto, for appellant Reem Yousef Saeed Kreishan. Legal Aid Ontario Refugee Law Office, Toronto, for appellants Suad Sulieman Odeh Abu Shabab, Abdalla Mahmoud Aboushabab, TagiMahmoud Mohamed Aboshabab. Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by Rennie J.A.: Table of Contents Paragraph I. Overview 1II. The refugee determination process 18A. Legislative history of the RAD bar 28B. Purpose and powers of the RAD 41III. Notice of constitutional question 48IV. Standard of review 56V. The Federal Court decision and the appellants’ arguments on appeal 57VI. Analysis 64 A. Preliminary observations 64

B.

Section 7 – General principles 78 C. Engagement 88 (

a) psychological harm 93 (

b) nature of the process 101 (

i) refoulement and risk 104 (ii) Supreme Court jurisprudence and its implications 110 (

c) increased risk of refoulement 128 (

d) positive rights and

section 7 135 VII. Conclusion 142 I. Overview [ 1 ] Under the safe third country concept in refugee law, claims for asylum may be rejected on the basis that the claimant should have sought protection in a country other than where the claim was made. An underlying objective of this concept is to deter asylum shopping (see Stephen H. Legomsky, “Secondary Refugee Movements and the Return of Asylum Seekers to Third Countries: The Meaning of Effective Protection” (2003), 15:4 Int. J. Refugee L. 567, at pages 568–571).

In the context of individual claims for protection, the failure to claim protection in the first safe country of arrival may also bear on the credibility of the claimant ( Nadesan v. Canada (Citizenship and Immigration) , 2015 FC 104 , at paragraph 11 ; Ayala Sosa v. Canada (Citizenship and Immigration) , 2014 FC 428 , at paragraph 34 ). [ 2 ] Parliament has legislated the safe third country concept into Canadian law.

Subsection 102(1) of the Immigration and Refugee Protection Act , S.C. 2001, c. 27 ( IRPA ) empowers the Governor in Council to designate countries that comply with international standards relating to the treatment of refugees as safe third countries. Refugee claimants coming to Canada from a designated safe third country cannot have their asylum claims determined here ( IRPA, paragraph 101(1) (e)). [ 3 ] To date the United States of America is the only country designated as a safe third country ( Immigration and Refugee Protection Regulations (SOR/2002-227 ),

section 159.3 (IRPA Regulations)). Following that designation, the United States and Canada signed 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 [5 December 2002, [2004] Can. T.S. No. 2] (otherwise known as the “Safe Third Country Agreement” (STCA)). The STCA came into effect on December 29, 2004. [ 4 ] The

preamble to the STCA states that its objectives include the orderly handling of asylum applications, enhanced burden sharing and cooperation between Canada and the United States, and the avoidance of direct or indirect breaches of the principle of non- refoulement . The

preamble recognizes the legal obligations of Canada and the United States under the principle of non- refoulement , set out in the 1951 United Nations Convention Relating to the Status of Refugees , [July 28, 1951, [1969] Can. T.S. No. 6] 189 U.N.T.S. 150 (Convention) and the 1967 Protocol Relating to the Status of Refugees , 606 U.N.T.S. 267. The principle of non- refoulement prohibits the removal of refugees to a territory where they are at risk of human rights violations, and has been described as the cornerstone of the international refugee protection regime ( Németh v.

Canada (Justice) , 2010 SCC 56 , [2010] 3 S.C.R. 281 ( Németh ), at paragraphs 18–19 ). [ 5 ] Under the STCA, refugee claimants arriving from the United States at a Canadian land border port of entry cannot seek protection here. Responsibility over their claim falls to the United States, it being the first “safe country” in which they arrived. Claimants arriving from the United States are returned to the United States at the Canadian border and directed to make their claim for asylum there.

I note, parenthetically, that claimants arriving in Canada otherwise than at a land border port of entry (e.g., via an irregular border crossing or by air) are exempt from the STCA. Their claims for protection are assessed in the same manner as those of refugee claimants arriving from other countries. [ 6 ] However, Canada retains responsibility for determining the refugee status of claimants arriving from the United States who have family members in Canada or who are unaccompanied minors.

These claimants enter Canada and have their refugee status determined by the Refugee Protection Division (RPD) of the Immigration and Refugee Board (I.R.B.) (IRPA Regulations,

section 159.5). This appeal concerns those claimants — who I will refer to as “STCA-excepted claimants” — and the refugee determination process available to them in Canada. [ 7 ] If an STCA-excepted claimant’s application for asylum is rejected by the RPD, recourse lies in an application for leave and judicial review of the RPD decision in the Federal Court ( IRPA,

section 72 ). Other failed claimants, however, have a right of appeal to the Refugee Appeal Division (RAD), accompanied by a statutory stay of removal. The unavailability of a right of appeal and stay pending its disposition for STCA-excepted claimants lies at the heart of this appeal. [ 8 ] The appellants are STCA-excepted asylum seekers whose claims were rejected by the RPD. They are Bangladeshi, Colombian, Jordanian and Syrian citizens and stateless Palestinians who, after transiting through the United States, presented claims for protection at a Canadian land border port of entry.

Asserting that they had family members in Canada, they were allowed into Canada to advance their claims before the RPD. [ 9 ] The appellants’ claims were heard and rejected by the RPD. They appealed the negative RPD decisions to the RAD. The RAD dismissed the appeals on jurisdictional grounds, as under paragraph 110(2)(

d) of the IRPA the appellants had no right of appeal. [ 10 ] All of the appellants — except Ms. Kreishan — received leave to judicially review the RPD decisions dismissing their claims. These challenges were resolved in favour of the appellants, with the exception of that of Mr. Hossain, who was unsuccessful in his motion for a stay of removal, and was deported to Bangladesh. [ 11 ] The appellants also launched parallel applications in the Federal Court for leave to judicially review the RAD’s dismissals of their appeals.

[12] In the appellants’ challenges to the RAD decisions, leave was granted and the applications were consolidated. The appellantscontended before the Federal Court that the denial of a right of appeal to the RAD contained in paragraph 110(2)(

d) of the IRPA—“theRAD bar”—infringed

section 7 of the Canadian Charter of Rights and Freedoms, being

Part 1 of the Constitution Act, 1982, ScheduleB, Canada Act 1982, 1982, c. 11 (U.K.) [R.C.S., 1985, Appendix II, No. 4] (Charter). The appellants argued that their

section 7 interestswere engaged by the risk of refoulement at the end of the refugee determination process, the enhanced likelihood of refoulement forSTCA-excepted claimants relative to those with access to the RAD and the psychological stress associated with the absence of a right ofappeal. They further argued that the substantive protections of

section 7 were violated by the RAD bar on the basis that it is arbitrary andoverbroad in relation to its purpose, with grossly disproportionate effect, and that this infringement is not saved by

section 1 of theCharter. [13] These arguments were dismissed by the Federal Court (Kreishan v. Canada (Citizenship and Immigration), 2018 FC 481, 60 Imm.L .R. (4th) 257 (Kreishan), per Heneghan J.), and have been advanced again on appeal. [14] I approach the appellants’ arguments from the threshold proposition that determining whether a statutory provision is compliantwith

section 7 of the Charter is a contextual exercise (see Winnipeg Child and Family Services v. K.L.W., 2000 SCC 48, [2000] 2 S.C.R.519, at paragraph 71 (and cases cited therein); Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1 S.C.R. 350(Charkaoui), at paragraph 20; Canada (Minister of Employment and Immigration) v. Chiarelli, (SCC), [1992] 1 S.C.R.711 (Chiarelli), at page 732; British Columbia Securities Commission v. Branch, (SCC), [1995] 2 S.C.R. 3, at pages 7–8).

This caution has particular resonance when considering the IRPA, which provides for different streams of refugee claimants anddifferent levels and types of review, that together form an integrated refugee determination system. Within this system there are elementsof administrative, quasi-judicial, judicial and ministerial discretion which provide recourse to refugee claimants, at times sequentially,and at times concurrently. It is a process for the determination of refugee claims, and for that reason, it is imperative to situate the RADbar under paragraph 110(2)(

d) in the context of that process. This is particularly so where the argument, as it is here, is that the denial ofa right to appeal violates both procedural and substantive principles of fundamental justice. [15] The appellants’ argument is ultimately predicated on the difference in treatment between different streams of asylum claimants. Forthat reason, any analysis requires an understanding of the process governing the adjudication of the claims of what I will call “regularclaimants”—those arriving to Canada otherwise than at a land border port of entry from the United States.

I will then identify how, inthat process, the treatment of STCA-excepted claimants differs from that of regular claimants, followed by a review of the purpose andpowers of the RAD, the appellate body to which the appellants are denied access. [16] Thereafter, and with the benefit of that context, I will turn to the appellants’

section 7 arguments. My analysis will address thejurisprudence of the Supreme Court of Canada on

section 7 in its substantive and procedural aspects and its intersection withpsychological harm and the risk of refoulement, to determine whether the RAD bar engages the appellants’

section 7 rights. [17] For the reasons which follow, I have concluded that paragraph 110(2)(

d) of the IRPA does not engage

section 7. II. The refugee determination process [18] If regular refugee claimants are unsuccessful before the RPD, they may appeal to the RAD. If their appeal is unsuccessful, furtherrecourse lies in an application for leave to commence judicial review in the Federal Court. Leave will be granted where a “fairly arguablecase” is disclosed (Bains v. Canada (Minister of Employment and Immigration) (1990), 47 Admin.

L.R. 317, 109 N.R. 239 (F.C.A.)). [19] If the failed claimant is unsuccessful in their application to obtain leave to commence judicial review of the RAD decision, oralternatively, if leave is granted but the RAD decision is maintained by the Federal Court, they may, with certain exceptions, apply for apre-removal risk assessment (PRRA).

If unsuccessful before the PRRA officer, that is to say the PRRA officer concludes that there is nonew evidence of risk or a change in country conditions since the RPD decision, the claimant may bring an application for leave tocommence a judicial review application of the PRRA officer’s decision. [20] Regular claimants whose claims for protection are rejected by the RPD have an automatic stay of removal pending the dispositionof their appeal and leave application (IRPA Regulations, subsection 231(1)). [21] If unsuccessful before the PRRA officer, a failed claimant will receive a Notice to Report to a removals officer to makearrangements for removal from Canada.

Faced with a Notice to Report, a failed claimant may request a deferral of removal. The decisionof a removals officer not to defer removal is a decision or order within the scope of

section 2 of the Federal Courts Act, R.S.C., 1985, c.F-7, and can be the basis for a further application for leave to commence judicial review in the Federal Court. It is usually accompaniedby a motion for a stay of the removal order pending disposition of the application for leave to commence judicial review. [22] Parallel to these proceedings, or in practice, contemporaneous with a request that the removal order be deferred, a claimant mayapply under

section 25.1 of the IRPA, requesting that the Minister dispense with compliance of provisions of the Act or Regulations onhumanitarian and compassionate grounds. A claimant may bring a further application for leave to commence judicial review of a refusalof a

section 25.1 application, and concurrently seek a stay from the Federal Court pending disposition of the leave application (seeKanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909 for consideration of the scope of thediscretion under this section). [23] There are points of both convergence and divergence in the process applicable to regular claimants and STCA-excepted claimants.Identification of these points brings the appellants’ argument that

section 7 is engaged into sharper relief. [24] First, the merits of all claims for protection of all claimants, regardless of how they entered Canada, are assessed in substantivelythe same manner. Where, as here, the determination of refugee status involves an issue of credibility, the claimant is entitled to an oralhearing before an independent and impartial decision maker—the RPD. That is the teaching of Singh v. Minister of Employment andImmigration, (SCC), [1985] 1 S.C.R. 177 (Singh). I am, of course, leaving aside special cases that are not pertinent here,such as those that are excluded from the refugee determination process entirely by

Article 1F of the 1951 Convention and

section 98 ofthe IRPA (see Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431 (Febles).

[ 25 ] The second observation is that STCA-excepted claimants such as the appellants do not have access to a statutory stay of removal pending an application for leave to judicially review a negative RPD decision (IRPA Regulations, subsection 231(1)). They must seek a stay in the Federal Court pending disposition of the application for leave, and if leave is granted, pending disposition of the application for judicial review on the merits. This requirement underpins the appellants’ argument of psychological stress and anxiety.

Unlike regular claimants who have the certainty of a legislative stay pending their appeal to the RAD and subsequent application for leave to apply for judicial review of a RAD decision, the appellants have no such certainty and are forced to seek a stay from the Federal Court. [ 26 ] The third observation is that following a negative RPD decision (in the case of an STCA-excepted claimant) or dismissal of an application for leave to commence judicial review of a negative RAD ruling (in the case of a regular claimant), the streams of failed claimants merge. From that point on there are no distinctions.

Failed claimants, regardless of the country of origin, may follow the same path — request for a PRRA, request for deferral of removal, a

section 25.1 application, each with their associated leave and stay applications. There are circumstances when claims for protection have been rejected under which both STCA-excepted claimants and regular claimants may not receive a PRRA. Paragraph 112(2) (b.1), for example, precludes all failed claimants, regardless of which stream they are in, from applying for a PRRA until 12 months have passed since the rejection of their claim for refugee protection. [ 27 ] The fourth observation is that the appellants are not the only category of claimants for whom there is no right of appeal.

Decisions to allow or reject a claim for refugee protection by a designated foreign national ( IRPA, paragraph 110(2) (a)), and decisions rejecting claims for refugee protection with no credible basis or that are manifestly unfounded ( IRPA, paragraph 110(2) (c)) may not be appealed. As noted earlier, some claimants have no access whatsoever to the refugee determination process (section 98 of the IRPA and

Article 1F of the Convention). A. Legislative history of the RAD bar [ 28 ] The appellants’ argument is that the availability of a right of appeal for some, but not all claimants, renders their pathway through the refugee determination process unconstitutional. As in all cases where the constitutionality of a statutory provision is challenged, context is critical, and for that reason I turn to the legislative origins, purposes and powers of the RAD. [ 29 ] I begin with the legislative history. [ 30 ] Under the Immigration Act , R.S.C., 1985, c.

I-2, which preceded the IRPA , refugee claims were decided by two members of the Convention Refugee Determination Division of the I.R.B. If either member decided in the claimant’s favour, protection was granted. Unsuccessful claimants could make an application for leave for judicial review in the Federal Court. There was no appeal, to any tribunal. [ 31 ] In 2001, An Act respecting immigration to Canada and the granting of refugee protection to persons who are displaced, persecuted or in danger (now the IRPA ), was introduced in Parliament (Bill C-11 [37th Parl., 1st Sess.]).

Under its scheme, refugee claims would be determined by a single-member panel of the RPD with a right of appeal to a newly established appellate tribunal (the RAD). [ 32 ] Bill C-11 received Royal Assent in November 2001, with its provisions to come into force on days to be fixed by order of the Governor in Council. However, in April 2002, the Minister of Citizenship and Immigration announced that the implementation of the RAD would be delayed due to “pressures on the system” (CIC Press Release, “Refugee Appeal Division Implementation Delayed”, 29 April 2002).

As a result, following the coming into force of many of the IRPA ’s provisions in June 2002 ( Order Fixing June 28, 2002, as the Date of the Coming into Force of Certain Provisions of the Act , SI/2002-97), refugee claims were heard by a single member of the RPD. In the absence of the RAD,

section 231 of the Regulations — which also came into force in June 2002 — provided for a statutory stay of removal where leave to judicially review a negative RPD decision was sought. [ 33 ] In 2010, the Balanced Refugee Reform Act , S.C. 2010, c. 8 ( BRRA ), was passed by Parliament. The BRRA provided that the IRPA ’s RAD provisions would come into force within two years of Royal Assent. The BRRA received Royal Assent in June of that year. [ 34 ] Two years later, in June 2012, Bill C-31, Protecting Canada’s Immigration System Act , S.C. 2012, c. 17 ( PCISA ), also received Royal Assent. The PCISA added certain restrictions on the right of appeal to the RAD. The bill’s

summary states that the IRPA was to be amended to “provide for the expediting of the processing of refugee protection claims”. [ 35 ] Of importance for the purposes of this appeal,

section 110 of the IRPA , which established the RAD, was amended by the PCISA to include paragraph 110(2) (d). This paragraph, which is the target of the declaration of unconstitutionality, provides that no appeal to the RAD is available for STCA-excepted claimants: 110 … … Restriction on appeals

(2) No appeal may be made in respect of any of the following: … (

d) subject to the regulations, a decision of the Refugee Protection Division in respect of a claim for refugee protection if (

i) the foreign national who makes the claim came directly or indirectly to Canada from a country that is, on the day on which their claim is made, designated by regulations made under subsection 102(1) and that is a party to an agreement referred to in paragraph 102(2)(d), and

(ii) the claim — by virtue of regulations made under paragraph 102(1)(c) — is not ineligible under paragraph 101(1)(

e) to be referred to the Refugee Protection Division; [ 36 ] The Regulations were also amended in 2012 (SOR/2012-272) to account for the implementation of the RAD. Subsection 231(1) of the Regulations, under which a removal order was stayed where a failed RPD claimant sought leave to file an application for judicial review of an RPD decision, was amended to limit the statutory stay to an application for judicial review of a RAD decision.

In practical terms, this meant that there was no automatic stay of removal for failed STCA-excepted applicants, such as the appellants, who did not have recourse to the RAD. [ 37 ] The Regulatory Impact Analysis Statement to SOR/2012-272 [ C. Gaz. 2012.II.2871] stated [at page 2875] that the amendment to subsection 231(1) of the Regulations was intended to ensure that STCA-excepted claimants would not be eligible for an automatic stay of removal if they sought leave to judicially review a negative RPD decision.

This would “support the Government’s goals of expedited processing and removal of certain classes of failed claimants.” [ 38 ] To summarize, during the 10-year period between the coming into force of the IRPA in 2002 and the implementation of the RAD in June of 2012 under the BRRA , all claimants, regardless of whether they transited through a safe country, had their claims determined by a single member of the RPD. All claimants could bring applications to the Federal Court for leave to judicially review the RPD decision and a stay of removal pending disposition of the leave application.

At no time was the RAD operational without the restrictions on appeal under subsection 110(2) ; put otherwise, persons in the position of the claimants, as failed STCA-excepted claimants, never had access to the RAD. [ 39 ] With the advent of the RAD in 2012, most but not all claimants can appeal a negative RPD decision to the RAD. For these failed claimants, removal is deferred pending disposition of both the appeal and the application for leave to commence judicial review (IRPA Regulations,

section 231). [ 40 ] In contrast, STCA-excepted claimants who are unsuccessful before the RPD can bring an application for leave to judicially review the RPD decision. They may, in some cases, request a PRRA and a stay from the Federal Court pending its disposition. Again, should the PRRA be negative, leave to judicially review that decision may be sought. STCA-excepted claimants can also request a deferral of removal from the officer enforcing the removal order and seek leave to judicially review the officer’s decision along with a stay from the Federal Court pending disposition of the leave application. B.

Purpose and powers of the RAD [ 41 ] The legislative purpose behind the RAD’s implementation was discussed in Huruglica v. Canada (Citizenship and Immigration) , 2016 FCA 93 , [2016] 4 F.C.R. 157 ( Huruglica ).

In that case, this Court referred to the 2001 comments of the Minister responsible for Bill C-11, that “ [t]he whole purpose [of the RAD] is to ensure that the correct decision is made ” [emphasis in original] (at paragraph 87), as well as to those of Peter Showler, then Chair of the I.R.B., who stated that the RAD would “ efficiently remedy errors made by the RPD ” and act as a “ safety net ” [emphasis in original] (at paragraph 88).

After reviewing the legislative history, this Court concluded that “[t]he RAD was essentially viewed as a safety net that would catch all mistakes made by the RPD, be it on the law or the facts” (at paragraph 98). [ 42 ] The RAD has robust powers of error-correction consistent with its statutory purpose.

Unless precluded by the IRPA , an appeal to the RAD from an RPD decision may be made as a matter of right by a failed claimant or by the Minister on questions of law, fact or mixed fact and law. [ 43 ] Appeals before the RAD “must” proceed without a hearing on the basis of the record before the RPD ( IRPA, subsection 110(3) ). New evidence may only be presented if it arose after the rejection of the claim or was not reasonably available at the time of the hearing before the RPD.

Where new evidence is admitted, the RAD has the discretion to hold an oral hearing ( IRPA, subsections 110(4) , 110(6) ) provided certain criteria are met. Subsection 110(6) provides: Appeal to Refugee Appeal Division 110 … … Hearing

(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (

a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (

b) that is central to the decision with respect to the refugee protection claim; and (

c) that, if accepted, would justify allowing or rejecting the refugee protection claim. [ 44 ] RPD decisions are reviewed by the RAD for correctness ( Huruglica , at paragraph 103 ). The RAD may confirm the RPD determination, set it aside and substitute its own decision, including a grant of refugee protection, or refer the matter back to the RPD with directions ( IRPA, subsection 111(1) ). The RAD does not have the power to order removal and makes no orders to that effect. Removal is an administrative action, taken by departmental officers when a claim has been rejected.

The Federal Court, on the other hand, can stay or set aside removal orders. [ 45 ] The appellants contrast the powers of the RAD with the limitations of judicial review of an RPD decision. The critical distinction between an appeal to the RAD and recourse in the Federal Court lies in the standard of review. Correctness before the RAD offers the

appellants the hope that a second hearing, albeit on the same record and without oral evidence, will generate a different result. Further,access to the RAD is as of right, whereas access to the Federal Court is dependent on leave (IRPA, subsection 72(1)). New evidence isadmissible before the RAD provided that the statutory criteria are met. Judicial review in the Federal Court is confined to the record. [46] Before leaving this point, a caveat.

It is important to note that the standard of review by which the Federal Court reviews RPD andRAD decisions does not preclude consideration of the merits or factual findings of either tribunal. Reasonableness and its criteria ofjustification, intelligibility and transparency, apply to how these tribunals assess the evidence before them and the inferences which maybe drawn from that evidence, and correctness applies to the fairness of the procedure of the RPD hearing (Canadian Pacific RailwayCompany v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121).

Adverse findings of fact and conclusions or inferenceswith respect to credibility must find their justification in the evidence before the RPD and their expression in the reasons of the RPD. [47] While there is most certainly a difference in the role of RAD and the Federal Court in reviewing an RPD decision, the gulf is not aswide as contended. The difference lies in correctness review as opposed to reasonableness review. Reasonableness review requires thatall elements of an RPD decision satisfy the Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 criteria. III.

Notice of constitutional question [48] Where the constitutional validity of legislation is in question, subsections 57(1) and (2) of the Federal Courts Act require that anotice of constitutional question be served on the Attorney General of Canada and on the provincial and territorial Attorneys General atleast ten days before the hearing of the appeal: Constitutional questions 57

(1) If the constitutional validity, applicability or operability of

an Act of Parliament or of the legislature of a province, or ofregulations made under such

an Act, is in question before the Federal Court of Appeal or the Federal Court or a federal board,commission or other tribunal, other than a service tribunal within the meaning of the National Defence Act, the Act or regulation shallnot be judged to be invalid, inapplicable or inoperable unless notice has been served on the Attorney General of Canada and the attorneygeneral of each province in accordance with subsection (2). Time of notice

(2) The notice must be served at least 10 days before the day on which the constitutional question is to be argued, unless the FederalCourt of Appeal or the Federal Court or the federal board, commission or other tribunal, as the case may be, orders otherwise. [49] In this case, the appellants filed a notice of constitutional question on September 25, 2018, with an accompanying solicitor’scertificate stating that the notice had been served on the Attorneys General on September 24, 2018, less than ten days prior to the hearingof the appeal.

The parties were directed to address the implications of late service in their oral submissions. [50] At the outset of the hearing of this appeal, counsel for the appellants advised that six of the provincial and territorial AttorneysGeneral had indicated no intention to intervene in the appeal and that it was anticipated that none of the remaining Attorneys Generalwould respond differently. Counsel submitted that this Court had the discretion under subsection 57(2) of the Federal Courts Act toabridge the time for service and hear the appeal as scheduled, as the Federal Court had done in Tapambwa v.

Canada (Citizenship andImmigration), 2017 FC 522, [2017] 4 F.C.R. 458 and Ishaq v. Canada (Citizenship and Immigration), 2015 FC 156, [2015] 4 F.C.R.297, by applying the factors set out in Canada (Attorney General) v. Larkman, 2012 FCA 204, 433 N.R. 184 (Larkman) relating torequests for extensions of time. [51] Counsel for the Attorney General of Canada agreed that the Larkman factors were satisfied in this case and consented to thehearing of the appeal as scheduled.

Both counsel submitted that the importance of the legal question at issue, as well as the large numberof cases in abeyance at the Federal Court pending the outcome of this appeal, weighed in favour of granting an abridgement of time forservice. [52] After considering the parties’ submissions, the Court decided to hear the appeal on a conditional basis. The parties were advisedthat if any of the remaining provincial or territorial Attorneys General sought leave to intervene it was possible that the appeal wouldneed to be reheard, depending on the nature of the intervention sought.

The appeal proceeded on that basis. Following the hearing of theappeal, the appellants advised the Court that they had received replies from all 13 provincial and territorial Attorneys General and thatnone had expressed an intention to intervene in the appeal and either consented to, did not oppose, or expressly declined to take a positionon the appellants’ request for an abridgement of the time for service of the notice. [53] As a result of the responses from the Attorneys General, I would grant the appellants’ request for an abridgement of the time forservice.

However, in doing so I stress that the notice requirement in

section 57 of the Federal Courts Act is not a mere formality. In thiscase, the Court exercised its discretion to hear the appeal on a conditional basis, taking into account the parties’ submissions and theconsent of the Attorney General of Canada. This decision was not lightly made and similar results should not be expected in future cases. [54] Further, I do not agree that the Larkman factors are dispositive. Those factors are designed to address the interests of and potentialprejudice to the parties to a proceeding. The notice of constitutional question, by contrast, has a public dimension.

It ensures that a law isnot declared unconstitutional unless the fullest opportunity has been given to the government to support the law’s validity (Guindon v.Canada, 2015 SCC 41, [2015] 3 S.C.R. 3, at paragraph 19, citing Eaton v. Brant County Board of Education, (SCC),[1997] 1 S.C.R. 241, at paragraph 48). As a result, it is the potential for prejudice to that public interest that is paramount. [55] The fact that immigration is a head of exclusive federal legislative competence does not mean that the provinces are unlikely tohave an interest.

Provincial Attorneys General may have no great stake in whether paragraph 110(2)(

d) of the IRPA survives Charterscrutiny, but this is irrelevant for the purposes of considering whether the time for service of the notice should be abridged. The interestof the Attorneys General is in the evolution of

section 7 jurisprudence and the implications of a decision in a particular case to analogousmatters within provincial legislative competence.

IV. Standard of review [56] The constitutionality of paragraph 110(2)(

d) of the IRPA is a question of law. The decision of the Federal Court on this issueattracts appellate review on a standard of correctness (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paragraph 8). TheFederal Court’s evidentiary findings are nonetheless owed deference, including its assessment of the evidence on psychological harm. V. The Federal Court decision and the appellants’ arguments on appeal [57] As noted earlier, the Federal Court dismissed the application.

The judge observed that “[t]he heart of the Applicants’ arguments isnot the lack of an appeal but the consequences of that lack” [Kreishan, at paragraph 133]. The appellants identified those consequencesas an increased risk of refoulement and the imposition of serious state-imposed psychological stress. The judge assumed, but did notdecide, that these consequences engaged the appellants’

section 7 rights (Kreishan, at paragraph 144). [58] The judge rejected the argument that the RAD bar increased the risk of refoulement. The appellants, in consequence of the RPDdecision, were failed claimants. They were not, on the basis of the RPD adjudication, being returned to a country where they would facepersecution on Convention grounds. The judge also cited the Supreme Court’s decision in Kazemi Estate v. Islamic Republic of Iran,2014 SCC 62, [2014] 3 S.C.R. 176 (Kazemi), for the proposition that

section 7 “does not protect against ordinary stress and anxiety”(Kreishan, at paragraph. 131)—the inference being that the stress allegedly associated with a denial of access to the RAD wasindistinguishable from the stress inherent to the refugee determination process and thus did not meet the threshold of a

section 7 interest. [59] With respect to the second phase of the

section 7 analysis, namely whether the deprivation was in accordance with the principles offundamental justice, the judge found that the legislative objective of the STCA was to regulate the entry of refugee claimants intoCanada and the streamlining of the refugee determination process. In that context, the purpose of the bar on appeals to the RAD and theabsence of a statutory stay of removal was to reduce incentives which would encourage the making of claims in Canada when claimantshad access to protection in the United States.

The judge concluded that the RAD bar was not arbitrary, but was rationally connected tothe objectives of burden sharing with the United States and limiting the caseload before the RAD. The RAD bar was not overbroadbecause it promoted the aims of the STCA, namely to encourage claimants to present their claim in their country of first arrival, andaligned with the purposes of the safe third country concept. [60] In broad terms, the appellants raise three challenges to the decision.

They do not quarrel with the judge’s characterization of theissues, rather they contend that the judge erred in law in the analysis of their

section 7 interests on the assumption that they wereengaged. Without determining the nature and extent to which their rights were engaged, no principled consideration could be given to thequestion whether the deprivation of those rights was in accordance with the principles of fundamental justice. [61] Consequently, the appellants say that the judge erred in her analysis of whether the appellants were deprived of their rights inaccordance with the principles of fundamental justice. In this regard, they point to the judge’s conclusions as to the legislative purpose ofthe STCA, arguing that such a broad and amorphous characterization of legislative purpose in the context of

section 7 analysiseffectively immunizes legislation from constitutional scrutiny. With respect to the overbreadth and the proportionality criteria, theycontend that the judge failed to examine the relationship between the objectives of the impugned provisions and the impact on theappellants’

section 7 interests.

They also argue that the judge made a palpable and overriding error of fact in concluding that the RADbar resulted in a reduction of the time required for removal of failed claimants, and that this undermined the rational connection betweenthe measure and the purpose. [62] The appellants argue that the judge erred in not finding that the preferential treatment given to regular claimants triggered theirsection 7 interests by increasing the risk of refoulement and amplifying the anxiety and psychological stress associated with prosecutinga claim for protection. [63] Citing the submissions of the United Nations High Commission for Refugees (UNHCR) to the Parliamentary Committee in itsconsideration of what became the PCISA, they contend that a second stage appeal for failed claimants is necessary to ensure that errorsof fact or law are corrected, so as to minimize the risk of refoulement.

The appellants point to what they characterize as the high level ofsuccessful appeals from negative RPD rulings as support for their argument, and the correspondingly low percentage of successfulapplications for leave for judicial review. VI. Analysis A. Preliminary observations [64] Before turning to the principles which guide the application of

section 7 in these circumstances, four preliminary observations arein order. [65] I admit that I have struggled with the appellants’ arguments. The appellants concede that, under existing case law, the principles offundamental justice do not require, as a matter of process, any right of appeal (Sachs v. Air Canada, 2007 FCA 279, 367 N.R. 384(Sachs), at paragraph 11, citing Kourtessis v. M.N.R., (SCC), [1993] 2 S.C.R. 53 (Kourtessis); see also Charkaoui, atparagraph 136; Beer v. Saskatchewan (Highways and Infrastructure), 2016 SKCA 24 , 476 Sask. R. 74, at paragraph 3; Alberta(Attorney General) v.

Malin, 2016 ABCA 396 , 406 D.L.R. (4th) 368, at paragraph 25; Ruffolo v. Jackson, 2010 ONCA 472, 71M.P.L.R. (4th) 43, at paragraph 13; Cambie Surgeries Corporation v. British Columbia (Attorney General), 2017 BCCA 287, 99B.C.L.R. (5th) 338, at paragraph 27). However, they say that this rule speaks only to

section 7’s procedural guarantees, and does notpreclude a challenge on the basis that a denial of a right of appeal offends the substantive values embodied in the principles offundamental justice. They refer to the Federal Court’s comment in Mahjoub (Re), 2017 FC 334 (Mahjoub) that “while there is noconstitutional right to an appeal, if an appeal right is created, it must be constitutionally sound” (at paragraph 58).

Thus, in the appellants’view, while they may not have a constitutional right to access the RAD as a matter of process, they have a substantive right not to bebarred from the RAD in a manner that is arbitrary, overbroad or grossly disproportionate. [66] However, it has proven difficult not to view the appellants’ argument as a disguised challenge to the principle that there is no right,

constitutional or otherwise, to an appeal. The arguments which they advance in support of a right of appeal are no different, regardless of whether they are directed to the procedural or substantive considerations of

section 7 , and would be equally at home in an appeal that asserted, directly, a

section 7 right to appeal to the RAD as a matter of procedure. [ 67 ] In crafting these arguments, the appellants have cleaved the advantages of an appeal from the right to an appeal. They characterize the former as substantive and the latter as procedural, mirroring the dual elements of

section 7 . Doing so artfully avoids the instruction of the Supreme Court of Canada with respect to

section 7 appeal rights, and the appellants do not point to any case law which limits the Kourtessis principle to procedural rights alone. [ 68 ] Advantages are inherent in a right of appeal. There is no doubt that an appeal enhances a claimant’s chances of remaining in Canada. An appeal offers hope of a different outcome on the merits, or that the jurisprudential risks associated with a loss on appeal would convince the Minister to reconsider his or her position. But

section 7 is not engaged by an offer of hope — or the absence of hope. It is engaged where the claimant faces removal to risks of death, torture or cruel and usual treatment ( Charkaoui ; Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2020] 1 F.C.R. 699 ( Tapambwa ), leave to appeal to S.C.C. refused, 38589 (July 11, 2019)). This is consistent with this Court’s observations in Sachs , where it held that

section 7 does not grant a right to an appeal “even in matters with a significant effect on the life, liberty and security of the person” (at paragraph 11). Nor does

section 7 mandate a particular form of refugee determination process, let alone one that is error-free. [ 69 ] My second preliminary observation is that the appellants’ argument has echoes of a

section 15 Charter argument. The appellants concede that they have no right to an appeal, but because others do have a right, they are disadvantaged in ways said to engage

section 7. Much as the appellants seek to avoid arguing by way of comparison, their argument pivots on the differential in treatment between the two types of claimants. I accept that a statute creating a right of appeal cannot discriminate on a prohibited or analogous ground (see Mahjoub ). However, the appellants do not base their case on

section 15, although

section 15 themes and criteria are woven into their argument in support of the scope of

section 7 substantive protections. [ 70 ] Beguiling and attractive as the argument may be, importing the language of

section 15, and the concepts of “disadvantaged” and “in comparison to” into the analysis of

section 7 is problematic. The focus of

section 7 is on the particular rights of the claimant. Whether others are treated better is of no consequence, any more so than pointing to others that are treated worse. A court considering

section 7 engagement does so with a sharp focus on the rights of the party before it and asks whether that party is running a constitutionally unacceptable risk. [ 71 ] As noted earlier, if the appellants’

section 7 interests are triggered, the treatment of others is, at this stage, of no moment. I would also add that, to the extent comparisons are being made, the proper comparator might be those arriving from the United States at a Canadian land border port of entry and turned back. Sight should not be lost of the fact that the appellants were admitted into Canada under an exception to the STCA, and had an opportunity to advance a claim for asylum in Canada. In relation to those who are turned back, and who might be the closest comparator, the appellants are arguably more favourably treated. However, as noted, these comparative arguments have no place in considering whether

section 7 is engaged. To the extent they may be pertinent, they are best situated in the consideration of whether the deprivation is in accordance with the principles of fundamental justice, and if not,

section 1. [ 72 ] I turn to my third preliminary observation. It is important to be precise as to the argument that was made before this Court. [ 73 ] The appellants accept that had the RAD never been created, there would be no argument that

section 7 obligated that one be created. As a logical consequence, they accept that were the provisions establishing the RAD repealed, there would be no case to be advanced. This is because they do not, in the context of this case, argue that a right of appeal must exist in order to fulfill or round out the requirements of Singh . Nor do the appellants argue that a system of judicial review is inconsistent with

section 7 if it does not have an automatic stay of removal pending disposition of the application. This, counsel noted, is an open question. These arguments were not advanced before us and nothing in these reasons should be read as commenting on their merits. Rather, their argument, and in consequence, the singular focus of these reasons, is that the RAD bar takes away a protection and triggers enhanced psychological stress (the deprivation) in an overbroad, arbitrary and grossly disproportionate manner. The infirmity arises from the uneven treatment — the amelioration of the risk of refoulement for some but not all. [ 74 ] My fourth remark concerns the development of

section 7 in the context of immigration law. [ 75 ] The Supreme Court’s approach to

section 7 in the context of refugee determination has been the subject of critical academic commentary (see Gerald Heckman, “Revisiting the Application of

section 7 of the Charter in Immigration and Refugee Protection” (2017), 68 U.N.B.L.J. 312). Professor Heckman expresses the view that the Court’s approach to

section 7 in this context is inconsistent with its approach in other areas of law such as criminal and extradition law. Similarly, Professor Hamish Stewart has observed that, while criminal proceedings must comply with

section 7 “from the outset” because of the “potential for imprisonment that they create”, the same logic “apparently does not apply to deportation proceedings” (Hamish Stewart, Fundamental Justice:

Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012), at page 81). [ 76 ] It is arguable that the appellants here are at a “stage” of the refugee determination process that engages

section 7. This is because all foreign nationals are issued conditional removal orders immediately upon making a refugee claim. By subsections 48(1) and (2) of the IRPA , a removal order is “enforceable” if it has come into force and not been stayed, and a claimant who is subject to an enforceable removal order must leave Canada immediately. Thus, a conditional order made with respect to an STCA-excepted claimant comes into force 15 days after a negative RPD decision ( IRPA, paragraph 49(2) (c); IRPA Regulations, subsection 159.91(1)), and is not stayed by any other provision.

Therefore, the RAD bar is arguably not a preliminary stage of the type at issue in Febles and B010 v. Canada (Citizenship and Immigration) , 2015 SCC 58 , [2015] 3 S.C.R. 704 ( B010 ), but rather the stage “immediately preced[ing] removal” (see Heckman, at page 347), such that it is amenable to scrutiny on

section 7 grounds. [ 77 ] This argument, as attractive as it may be, is inconsistent with the clear and consistent direction of the Supreme Court. It is well established that the scope of the guarantees under

section 7 will vary with the relevant context ( Chiarelli , at page 732). The immigration context is no exception. In Chiarelli , the Supreme Court recognized that the scope of

section 7 rights differ as between citizens and non-

citizens in light of the fundamental principle that the latter do not have an unqualified right to enter or remain in Canada (page 733). In consequence, the removal of a non-citizen does not in itself engage the liberty and security interests encompassed in

section 7 (see also: Medovarski v. Canada (Minister of Citizenship and Immigration); Esteban v. Canada (Minister of Citizenship and Immigration) , 2005 SCC 51 , [2005] 2 S.C.R. 539, at paragraph 46 ). B.

Section 7 — General principles [ 78 ]

Section 7 of the Charter provides that everyone has the right to life, liberty and security of the person, and the right not to be deprived thereof except in accordance with the principles of fundamental justice. In Singh , the Supreme Court held that the word “[e]veryone” in

section 7 includes every person who is physically present in Canada and thus amenable to Canadian law. Foreign nationals entering Canada without proper documentation, such as the appellants, are therefore entitled to challenge the RAD bar on the basis that it infringes

section 7 of the Charter (see also R. v. Appulonappa , 2015 SCC 59 , [2015] 3 S.C.R. 754, at paragraph 23 ). [ 79 ] To establish an infringement of

section 7, the appellants bear a dual onus. [ 80 ] They must first show that their rights under

section 7 are engaged by the RAD bar, and then that the deprivation is not in accordance with the principles of fundamental justice. This two-step analysis has been consistently followed by this Court, and most recently reiterated by the Supreme Court in Ewert v. Canada , 2018 SCC 30 , [2018] 2 S.C.R. 165, at paragraph 68 and Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101 ( Bedford ), at paragraph 58 . [ 81 ] In the first stage of this analysis, commonly called “engagement”, the appellants have to demonstrate that one of the listed rights is engaged.

Regard must be had to the nature of the interests at stake ( Charkaoui , at paragraph 18 ), and in this case, the appellants’ argument on

section 7 engagement is limited to security of the person. They contend that as security of the person interests in

section 7 are co-extensive with persecution risks, an increased risk of refoulement engages

section 7. [ 82 ] To discharge their first burden, the appellants must establish that their security of the person has been or may be “negatively impact[ed]” or “limit[ed]”, and that there is a “sufficient causal connection” between the RAD bar and the prejudice suffered ( Bedford , at paragraphs 58, 75 ; R. v. Michaud , 2015 ONCA 585 , 127 O.R. (3d) 81, at paragraph 64 ). The sufficient causal connection standard does not require that the RAD bar be the only or even the dominant cause of the prejudice.

The deprivation and its causation may be established by a reasonable inference, drawn on a balance of probabilities ( Bedford , at paragraph 76 ). [ 83 ] The relevant standard of causation in a

section 7 challenge — a “sufficient causal connection” — requires a real and not speculative link between the prejudice and the legislative provision ( Bedford , at paragraph 76 ). The Supreme Court has held that this standard is a flexible one, which “allows the circumstances of each particular case to be taken into account” (at paragraph 75). In Bedford , the Supreme Court also rejected a higher threshold argued by the Attorney General of Canada, holding that only “a fair and workable threshold” was required for

section 7 engagement, being the “port of entry” for

section 7 claims (at paragraph 78). [ 84 ] At the second stage of the

section 7 analysis, if the appellants establish that the RAD bar interferes with their right to security of the person, they must show that the interference is contrary to the principles of fundamental justice. As the Supreme Court has stated, “[s]ection 7 does not promise that the state will never interfere with a person’s life, liberty or security of the person — laws do this all the time — but rather that the state will not do so in a way that violates the principles of fundamental justice” ( Carter v.

Canada (Attorney General) , 2015 SCC 5 , [2015] 1 S.C.R. 331, at paragraph 71 ). [ 85 ] The principles of fundamental justice have both substantive and procedural elements ( A.C. v. Manitoba (Director of Child and Family Services) , 2009 SCC 30 , [2009] 2 S.C.R. 181, at paragraph 138 , per McLachlin C.J.C., concurring; Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3 ( Suresh ), at paragraph 113 ). [ 86 ] The procedural elements of

section 7 are grounded in the specific context of the statute involved and the rights affected ( Suresh , at paragraph 115 ). That is, the

section 7 guarantee to a fair process takes its colour from the nature of the proceedings and the interests at stake ( Charkaoui , at paragraph 20 ). The substantive elements of

section 7 speak to the basic values underpinning our constitutional order ( Bedford , at paragraphs 96, 105 ). [ 87 ] In this case, the appellants argue that the RAD bar violates the values against arbitrariness, overbreadth and gross disproportionality. They do not argue that Parliament must, as a matter of fair process, provide refugee claimants with a statutory appeal and stay pending its disposition.

Instead, the appellants advance the argument, as their counsel stated during oral submissions, that Parliament cannot limit refugee claimants’ access to the RAD unless it observes the substantive principles of fundamental justice in doing so. C. Engagement [ 88 ] In the decision under appeal, the Federal Court assumed, but did not decide, that

section 7 was engaged. I agree with the appellants that this was an error. A court considering whether a law infringes

section 7 should not, in the ordinary course, simply assume that life, liberty or security of the person is negatively affected or limited by the legislation in question. There are three reasons for this. [ 89 ] First, the scope and substance of

section 7 interests are, in and of themselves, matters of discrete, independent jurisprudential analysis. Their ambit must be defined and calibrated having regard to the legislation or measure in question (see Begum v. Canada (Citizenship and Immigration) , 2018 FCA 181 , [2019] 2 F.C.R. 488 ( Begum ), at paragraph 99 ). If no interest in life, liberty or security of the person is implicated in the circumstances before the court, then the analysis stops ( Begum , at paragraph 110 ; Blencoe v.

British Columbia (Human Rights Commission) , 2000 SCC 44 , [2000] 2 S.C.R. 307 ( Blencoe ), at paragraph 47 ). [ 90 ] Assuming engagement also leaps over analysis of causation. A court must examine the nexus between the impugned measure and the deprivation. Causation is not to be assumed. In this appeal, the nexus between the measure and the

section 7 interests is critical to the analysis.

[91] Finally, the failure to scope out the precise nature of the deprivation frustrates the second stage of the

section 7 analysis—namely,whether that deprivation is in accordance with the principles of fundamental justice. It is impossible to consider whether the deprivationis in accordance with the principles of fundamental justice analysis without first understanding the nature of the rights engaged (see R. v.McDonald, 2018 ONCA 369, 360 C.C.C. (3d) 494, at paragraph 37). In this case, the appellants have argued that the RAD bar violatesthe basic values against arbitrariness, overbreadth and gross disproportionality (see Bedford, at paragraph 96).

A law is arbitrary wherethere is no connection between its effect and object, overbroad where it sweeps in conduct that bears no relation to its object, and grosslydisproportionate where its effect is, relative to its object, entirely outside the norms of our free and democratic society (Bedford, atparagraphs 98, 117, 119 and 120). All three principles “compare the rights infringement caused by the law with the objective of the law,not with the law’s effectiveness” (Bedford, at paragraph 123). [92] I turn to the engagement arguments raised by the appellants. (

a) psychological harm [93] The right to security of the person encompasses state-imposed psychological stress (Blencoe, at paragraphs 56–57). However, theeffect on a person’s psychological integrity must be “serious and profound” [emphasis in original] and “greater than ordinary stress oranxiety” (Kazemi, at paragraph 125, excerpting from New Brunswick (Minister of Health and Community Services) v. G. (J.), (SCC), [1999] 3 S.C.R. 46, at paragraph 60). The evidentiary and causal threshold that must be crossed to establish that themeasure has induced sufficient stress that it triggers the security of the person is high (Canada (Minis

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