2021 FCA 72, 2021 FCA 72

A-204-20 2021 FCA 72 The Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness ( Appellants ) v. The Canadian Council For Refugees, Amnesty International, The Canadian Council of Churches, ABC, DE [By Her Litigation Guardian ABC], and FG [By Her Litigation Guardian ABC], Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Yassin Al Nahass and Nedira Jemal Mustefa ( Respondents ) Indexed as: Canada (Citizenship and Immigration) v.

Canadian Council for Refugees Federal Court of Appeal, Noël C.J., Stratas and Laskin JJ.A.—By videoconference, February 23, 24; Ottawa, April 15, 2021.

Citizenship and Immigration — Status in Canada — Convention Refugees and Persons in Need of Protection — Appeal, cross-appeal from Federal Court judgment allowing applications for judicial review — Appeal, cross-appeal concerning constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada — Since 2004, United States designated pursuant to Immigration and Refugee Protection Regulations , s. 159.3 , which followed agreement in 2002 between United States, Canada called Safe Third Country Agreement — Since that time, many refugee claimants arriving from United States ruled ineligible for refugee protection in Canada, including individual respondents — They, advocacy organizations for refugees, brought three judicial reviews in Federal Court; alleged that designation of United States under Regulations , s. 159.3 ultra vires but Federal Court rejected allegation — Respondents also alleged that designation of U.S. as safe third country under Regulations , s. 159.3 , resulting ineligibility of refugee claimants in Canada under Immigration and Refugee Protection Act, s. 101(1) (

e) infringed rights guaranteed by Canadian Charter of Rights and Freedoms, ss. 7 , 15 — Federal Court agreed that both provisions infringed Charter, s. 7 ; were not justified under Charter, s. 1 — Federal Court declared provisions of no force or effect under Constitution Act, 1982, s. 52 — Given this conclusion, Federal Court found it unnecessary to deal with s. 15 issues — Main issue: whether cross-appeal should be summarily dismissed; whether appeal should be allowed — Cross-appeal lying where party seeking different disposition of judgment appealed from — Different disposition meaning remedy that will have real-life, practical consequences for party cross-appealing — Cross-appeal not lying simply because party is dissatisfied with reasons for judgment — Federal Court’s failure to grant declarations that Charter, s. 15 infringed; that Regulations , s. 159.3 ultra vires, not having any real-life, practical consequences for respondents as provisions respondents wanted struck down were struck down, albeit under Charter, s. 7 , not Charter, s. 15 — Act , s. 101(1) (e), Regulations , s. 159.3 part of interrelated legislative scheme — Two sections not sitting alone, in isolation — Artificial to view, analyze them in abstract — Evidentiary record that developed in Federal Court concentrated on general effects of designation of United States — Respondents’ applications not fitting with nature of legislative scheme — After designation, real cause of any continued designation or decision to revoke it is Act , s. 102(3) reviews, related administrative conduct — Respondents’ Charter challenge had to be dismissed — In this case, cause of any infringement not designation of United States 17 years ago but Act , s. 102(3) reviews, related administrative conduct that caused designation to continue — It was incumbent on respondents to challenge that; however, they did not do so — Federal Court dealt with Charter challenge in way it was put, defended — In so doing, its attention was diverted away from important features of legislative scheme—in particular, s. 102(3) reviews, related administrative conduct — As well, principles of Charter litigation not argued before it — These things leading Federal Court into reversible error — Respondents submitted that Regulations , s. 159.3 ultra vires but submission having no merit — Court’s decision in 2008 in Canadian Council for Refugees v.

Canada rejected it; that decision binding herein —Federal Court’s judgment set aside; applications for judicial review dismissed — Appeal allowed, cross- appeal dismissed.

Constitutional Law — Charter of Rights — Life, liberty and Security — Appeal, cross-appeal concerning constitutional validity of certain legislative provisions preventing certain refugee claimants from seeking refugee protection in Canada — Since United States designated as safe third country, many refugee claimants arriving from United States ruled ineligible for refugee protection in Canada, including individual respondents — Respondents brought three judicial reviews in Federal Court — Alleged in particular that designation of U.S. as safe third country under Immigration and Refugee Protection Regulations , s. 159.3 , resulting ineligibility of refugee claimants in Canada under Immigration and Refugee Protection Act, s. 101(1) (

e) infringing rights guaranteed by Canadian Charter of Rights and Freedoms, ss. 7 , 15 — Federal Court agreed that both provisions infringed Charter , s. 7 ; were not justified under Charter , s. 1 — Declared provisions of no force or effect under Constitution Act, 1982, s. 52 — On appeal, appellants focussing on Federal Court’s finding of unjustifiable infringement of Charter , s. 7 — Respondents’ Charter challenge in Federal Court offending practical rules that legislative provisions in interrelated legislative scheme cannot be taken in isolation, selectively challenged; where administrative action or administrative inaction under legislation is cause of rights’ infringement, it, not legislation, must be challenged — Here, cause of any infringement not designation of united States 17 years ago but Act , s. 102(3) reviews, related administrative conduct — Evidentiary basis too incomplete to allow for informed Charter adjudication on what really mattered in present case — Federal Court dealt with Charter challenge in way it was put, defended — In doing so, its attention was diverted away from important features of legislative scheme at issue — As well, principles of Charter litigation not argued before it — These things leading Federal Court into reversible error.

Constitutional Law — Charter of Rights — Equality Rights — Appeal, cross-appeal concerning constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada — Respondents brought three

judicial reviews in Federal Court — Alleged in particular that designation of U.S. as safe third country under Immigration and Refugee Protection Regulations , s. 159.3 , resulting ineligibility of refugee claimants in Canada under Immigration and Refugee Protection Act, s. 101(1) (

e) infringing rights guaranteed by Canadian Charter of Rights and Freedoms, ss. 7 , 15 — Federal Court agreed that both provisions infringed Charter , s. 7 ; were not justified under Charter , s. 1 — Given this conclusion, Federal Court found it unnecessary to deal with s. 15 issues — Respondents submitting that Federal Court obligated to deal with Charter , s. 15 challenge — Federal Court not so obligated — Court having discretion to deal with issues unnecessary to outcome of case — This applying to issues arising under Charter , s. 15 — Had it been necessary to decide Charter , s. 15 issues, Court would have had to assess whether it should determine the issues itself or send them back to the Federal Court to determine — Where, as, here, no factual findings made on s. 15 issues, generally best to send matter back to Federal Court because of its expertise in fact-finding — This was especially so here where Federal Court expressed concern about some evidence tendered in support of s. 15 claim that might affect its weight.

Practice — Cross-appeals — Appeal, cross-appeal concerning constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada — Respondents brought three judicial reviews in Federal Court alleging in particular that designation of United States under Immigration and Refugee Protection Regulations , s. 159.3 ultra vires but Federal Court rejecting allegation — Appellants’ submission that respondents’ cross-appeal improper, should be summarily dismissed well founded — Cross-appeal lying when party seeking different disposition of judgment appealed from ( Federal Courts Rules , r. 341 ) — Different disposition meaning remedy that will have real-life, practical consequences for party cross-appealing — Cross-appeal not lying simply because party dissatisfied with reasons for judgment — While Federal Court not granting specific declarations respondents seeking regarding Charter infringement, ultra vires issue, Federal Court’s failure to do so not having any real-life, practical consequences for respondents — Respondents wanted provisions at issue struck down; such provisions struck because infringing Charter , s. 7 — Respondents taking issue with Federal Court’s reasons, not its judgment — Therefore cross-appeal had to be dismissed.

This was an appeal by the appellants and a cross-appeal by the respondents from a Federal Court judgment allowing applications for judicial review. Broadly speaking, the appeal and the cross-appeal concerned the constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada. As a general matter, refugee claimants arriving from a country designated as a safe country under the Immigration and Refugee Protection Regulations are ineligible to claim refugee protection in Canada in accordance with paragraph 101(1) (

e) of the Immigration and Refugee Protection Act . Since 2004, the United States has been designated ( Regulations ,

section 159.3 ). This designation followed an agreement between the United States and Canada, commonly called the Safe Third Country Agreement. [1] Since that time, many refugee claimants arriving from the United States have been ruled ineligible for refugee protection in Canada, including the individual respondents. They and certain advocacy organizations for refugees brought three judicial reviews in the Federal Court. In their applications for judicial review, the respondents alleged that the designation of the United States under

section 159.3 of the Regulations was ultra vires but the Federal Court rejected that allegation. The respondents also alleged that the designation of the United States as a safe third country under

section 159.3 of the Regulations and the resulting ineligibility of refugee claimants in Canada under paragraph 101(1) (

e) of the Act infringed the rights guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms . The Federal Court agreed that these two provisions infringed

section 7 of the Charter and were not justified under

section 1 . It declared them of no force or effect under

section 52 of the Constitution Act, 1982 . Given this conclusion, the Federal Court found it unnecessary to deal with the

section 15 issues. In their appeal, the appellants focussed on the Federal Court’s finding of unjustifiable infringement of

section 7 of the Charter . In their cross-appeal, the respondents focussed on the Federal Court’s decision not to deal with the issues concerning

section 15 of the Charter and also challenged the Federal Court’s rejection of their ultra vires argument. The main issues were whether the cross-appeal should be summarily dismissed and whether the appeal should be allowed. Held , the appeal should be allowed and the cross-appeal dismissed. The appellants’ submission that the cross-appeal was improper and should be summarily dismissed was well founded.

A cross-appeal lies when a party “seeks a different disposition of the [judgment] appealed from” ( rule 341 of the Federal Courts Rules ). “[D]ifferent disposition” means a remedy that will have real-life, practical consequences for the party cross-appealing. A cross-appeal does not lie simply because a party is dissatisfied with the reasons for judgment. In the Federal Court, two sets of respondents sought a specific declaration that

section 15 of the Charter was infringed. All of the respondents sought a specific declaration that

section 159.3 of the Regulations was ultra vires . The Federal Court did not grant these specific declarations. However, the Federal Court’s failure to grant these declarations did not have any real-life, practical consequences for the respondents: they wanted the two provisions struck down and they were struck because they infringed

section 7 of the Charter . The respondents took issue with the Federal Court’s reasons, not its judgment. In 2002, Canada and the United States entered into the Safe Third Country Agreement, to share responsibility for refugees. Paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations are part of an interrelated legislative scheme. The two sections do not sit alone and in isolation. It is artificial to view and analyze them in the abstract, all the more so after a foreign country has been designated. After designation, reviews under subsection 102(3) of the Act are to take place continually to ensure that designation remains appropriate. All of the applications herein challenged the decision of an officer at an entry point who found the individual respondents’ claims for refugee protection to be ineligible for referral to the Refugee Protection Division of the Immigration and Refugee Board under paragraph 101(1) (

e) of the Act because of the designation of the United States under

section 159.3 of the Regulations . Invalidity is alleged to stem from two problems— ultra vires and the Charter . The respondents submitted that the two provisions cause effects that are contrary to

section 7 ,

section 15 or both. They also stated that the two provisions are not justified under

section 1 and must be struck down under

section 52 of the Constitution Act, 1982 . The respondents did not say that other provisions, statutory instruments or policies were invalid because they cause effects contrary to the Charter . Thus, the real essence and essential character of the respondents’ applications was a challenge to paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations , and only those two provisions. Alone and in isolation they are said to cause unconstitutional effects. Based on this, the evidentiary record that developed in the Federal Court concentrated on general effects of the designation of the United States, often described in terms of individual incidents rather than the subsection 102(3) reviews and related administrative conduct and their effect. The respondents’ applications did not fit with the nature of the legislative scheme. After designation, the real cause of any continued designation or decision to revoke it is the subsection 102(3) reviews and related administrative conduct.

In considering a Charter challenge, there are two practical rules: legislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged; and where administrative action or administrative inaction under legislation is the cause of a rights’ infringement, it, not the legislation, must be challenged. The respondents’ Charter challenge offended the two practical rules. The fundamental requirement of causation that underlies both rules was not met. This also rendered the evidentiary record on key issues too thin to permit responsible adjudication.

As a result, the respondents’ Charter challenge had to be dismissed. In this case, the cause of any infringement was not the designation of the United States 17 years ago but the subsection 102(3) reviews and related administrative conduct that caused the designation to continue. It was incumbent on the respondents to challenge that. However, they did not do that. Instead, they plucked two provisions out of this complex, interrelated legislative scheme and singled them out for attack. This was wrong and was fatal to the respondents’ challenge. Paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations cannot be challenged in isolation. A safety valve in the legislative scheme in issue here is the review procedure under subsection 102(3). In this case, if there are effects contrary to the Charter , they stem not from paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations but from the subsection 102(3) reviews and related administrative conduct. The legal question for the Court was whether the appeal record provided sufficient facts to permit the Court to adjudicate properly the issues raised. The answer was no. The evidentiary basis was too incomplete to allow for an informed Charter adjudication on what really mattered in this case. The alleged constitutional defect in this case stemmed from how administrators and officials are operating the legislative scheme, not the legislative scheme itself.

Based on the record here, to the extent that detrimental effects are being suffered by persons being returned to the United States, the legislative scheme as a whole is not to blame. Rather, if anything, subsection 102(3) reviews and related administrative conduct may be to blame. But because the respondents chose not to attack any administrative conduct, there was no evidence to assess it. Applications for judicial review are possible where a matter—usually administrative conduct or inaction—affects legal rights, imposes legal obligations or causes real prejudicial effects.

The individual respondents could have brought judicial reviews against the immigration officers’ decisions that they were ineligible for refugee protection in Canada on the basis that they were or are actually eligible. In support of that, they could have sought various forms of relief. The Federal Court dealt with the Charter challenge in the way it was put and defended. In so doing, its attention was diverted away from important features of the legislative scheme—in particular, the subsection 102(3) reviews and related administrative conduct and the centrality of these two things.

As well, the principles of Charter litigation were not argued before it. These things led the Federal Court into reversible error. As a result, it was possible to intervene in this matter. While the analysis on the respondents’ Charter challenge was sufficient to dismiss it, for future guidance on

section 7 claims in this area, certain issues arising from the Federal Court’s reasons were highlighted. In particular, the respondents submitted that the relevant principles of fundamental justice are that the effects of laws should not be overbroad or grossly disproportionate to their purposes and the Federal Court accepted that submission. But the effects, said to be overbroad and grossly disproportionate, are carried out in the United States, by United States officials, under United States law.

For that to count under Canadian law, the actions of United States officials had to have sufficient causal connection to Canadian actions such that the effects in the United States were an “entirely foreseeable consequence” of Canadian state action. All that the Federal Court said here was that there were “related harms”. That fell short of the necessary threshold. The plain text of

section 32 of the Charter provides that the Charter applies only to the “Parliament and government of Canada” and to the “legislature and government of each province.” The Federal Court was correct to note that Canada may not “avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand”. But this does not allow Canadian courts to assess the substance of United States law and practice through the domestic doctrines of overbreadth and gross disproportionality.

The relevant Canadian state action in this case is the removal of individuals to the United States where they will face treatment under the United States legal system and administration. In such circumstances, Canadian courts will respond to the removal of individuals to foreign legal systems and administrations only where they will suffer effects that are so deplorable they “shock the conscience” of Canadians, which is a high threshold. In this case, there was no evidence that could support a finding that the treatment of returnees to the United States at the Canada-United States border “shocks the conscience”.

There was evidence of individual cases of substandard treatment but nothing that rose to the very high level required by the “shocks the conscience” standard. As well, paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations are not contrary to the doctrines of overbreadth or gross disproportionality. When these doctrines are applied properly—i.e., applied only to Canadian state action and effects caused by that state action—there is a rational connection between the law’s objectives and its effects and the effects are not so severe that they are not justified by the objective.

In this case, the means chosen, ineligibility to the Refugee Protection Division for refugee respondents arriving from the United States, was not disproportionate with the objective of sharing responsibility for the consideration of refugee claims with countries that are signatory to and comply with the relevant articles of the Conventions and have an acceptable human rights record. A few words on the respondents’ challenge under

section 15 of the Charter were warranted. The respondents submitted that the Federal Court was obligated to deal with the

section 15 challenge but this was not accepted. A court has a discretion whether or not to deal with issues unnecessary to the outcome of the case. This applies to issues arising under

section 15 .

Section 15 does not enjoy “superior status in a ‘hierarchy’ of rights.” Had it been necessary for the Court to decide the

section 15 issues, it would have had to assess whether it should determine the issues itself or send them back to the Federal Court to determine. Where, as here, no factual findings have been made on the

section 15 issues, it is generally best to send the matter back to the Federal Court because of its expertise in fact-finding. This was especially so here where the Federal Court expressed concern about some of the evidence tendered in support of the

section 15 claim that might affect its weight. The respondents submitted that

section 159.3 of the Regulations was ultra vires . They maintained that the Regulations were not authorized by the Act at the time of enactment. They also maintained that, over time, the Regulations were no longer authorized by the Act because the factors under subsection 102(2) of the Act no longer supported the designation of the United States as a safe country. This submission had no merit. The Court’s decision in 2008 in Canadian Council for Refugees v. Canada rejected it. No later cases from the Supreme Court cast doubt on its conclusion that the Governor in Council had the power to designate the United States a safe third country under

section 159.3 of the Regulations . Thus, the decision in Canadian Council for Refugees was binding. In conclusion, the Federal Court’s judgment was set aside and the applications for judicial review were dismissed. STATUTES AND REGULATIONS CITED Canada Evidence Act , R.S.C., 1985, c. C-5, ss. 37(5) , 38 , 39 , 39.1(7) , (8) .

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, 8, 10(b), 11(h), 12, 15, 32. Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.),

Schedule to the Constitution Act,1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 11, 13, 91. Constitution Act, 1982,

Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 52. Controlled Drugs and Substances Act, S.C. 1996, c. 19, ss. 4(1), 56. Directives for Ensuring a Continuing Review of Factors Set Out in Subsection 102(2) of the Immigration and Refugee Protection Actwith Respect to Countries Designated Under Paragraph 102(1)(

A) of That Act (2015), P.C. 2015-0809. Federal Courts Act, R.S.C., 1985, c. F-7, s. 18.4(2). Federal Courts Rules, SOR/98-106, rr. 41, 317, 318, 341. Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 24(1), 25, 25.1, 25.2, 55, 74(d), 99(3), 101(1)(e), 102(1),(2),(3), 112(2)(b),159.3. Immigration and Refugee Protection Regulations, SOR/2002-227, s. 159.3.

Interpretation Act, R.S.C., 1985, c. I-21, ss. 31(4), 35(1) “Governor General in Council or Governor in Council”. Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004-217, s. 2. 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, Art. 6. United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1E, F.

CASES CITED FOLLOWED: Canadian Council for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136, leave to appeal to S.C.C. refused [2009] 1 S.C.R. vi. APPLIED: JP Morgan Asset Management (Canada) Inc. v. Canada (National Revenue), 2013 FCA 250, [2014] 2 F.C.R. 557; Canada (AttorneyGeneral) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; MacKay v. Manitoba, (SCC), [1989]2 S.C.R. 357, (1989), 61 D.L.R. (4th) 385; Danson v. Ontario (Attorney General), (SCC), [1990] 2 S.C.R. 1086, (1990),73 D.L.R. (4th) 686; Little Sisters Book and Art Emporium v.

Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120; R. v.Mills, (SCC), [1999] 3 S.C.R. 668, (1999), 180 D.L.R. (4th) 1. DISTINGUISHED: Canada (Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 (as to facts). CONSIDERED: Air Canada v. Toronto Port Authority, 2011 FCA 347, [2013] 3 F.C.R. 605; Canada (Citizenship and Immigration) v. Tennant, 2018FCA 132; Coldwater First Nation v. Canada (Attorney General), 2020 FCA 34, 444 D.L.R. (4th) 298; Kreishan v. Canada (Citizenshipand Immigration), 2019 FCA 223, [2020] 2 F.C.R. 299, 438 D.L.R. (4th) 148; Gosselin (Tutor of) v.

Quebec (Attorney General), 2005SCC 15, [2005] 1 S.C.R. 238. REFERRED TO: Canada (Citizenship and Immigration) v. Canadian Council for Refugees, 2020 FCA 181; Ratiopharm Inc. v. Pfizer Canada Inc., 2007FCA 261, 367 N.R. 103; Mahjoub v. Canada (Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344; R. v. Nova ScotiaPharmaceutical Society, (SCC), [1992] 2 S.C.R. 606, (1992), 93 D.L.R. (4th) 36; League for Human Rights of B’NaiBrith Canada v. Canada, 2010 FCA 307, [2012] 2 F.C.R. 312; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020] 2F.C.R. 355; Shpati v.

Canada (Public Safety and Emergency Preparedness), 2011 FCA 286, [2012] 2 F.C.R. 133; Tapambwa v. Canada(Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700; Brown v. Canada (Citizenship and Immigration), 2020 FCA 130,[2021] 1 F.C.R. 53; Atawnah v. Canada (Public Safety and Emergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153; Operation [2000] 2 S.C.R. 307; Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Kazemi Estate v. Islamic Republic ofIran, 2014 SCC 62, [2014] 3 S.C.R. 176; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398; de Guzman v.

Canada (Minister ofCitizenship and Immigration), 2005 FCA 436, [2006] 3 F.C.R. 655; Sogi v. Canada (Minister of Citizenship and Immigration), 2004FCA 212, [2005] 1 F.C.R. 171; A.G. (Que.) v. Quebec Protestant School Boards, (SCC), [1984] 2 S.C.R. 66, (1984), 10D.L.R. (4th) 321; R. v. Edwards Books and Art Ltd., (SCC), [1986] 2 S.C.R. 713, (1986), 35 D.L.R. (4th) 1; Eaton v.Brant County Board of Education, (SCC), [1997] 1 S.C.R. 241, (1997), 142 D.L.R. (4th) 385; R. v. Goltz, 1991

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Bradco Construction Ltd., (SCC), [1993] 2 S.C.R. 316, (1993), 102 D.L.R. (4th) 402; CapitalRegional District v. Concerned Citizens of British Columbia et al., (SCC), [1982] 2 S.C.R. 842, (1982), 141 D.L.R.(3d) 385; National Corn Growers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, (1990), 74 D.L.R.(4th) 449; Reference re Secession of Quebec, (SCC), [1998] 2 S.C.R. 217, (1998), 161 D.L.R. (4th) 385; Canada(Attorney General) v. Slansky, 2013 FCA 199, [2015] 1 F.C.R. 81; Canadian Judicial Council v.

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Canada (Attorney General), 2021 FCA 8; Lukács v. Canada (Transportation Agency), 2016 FCA103; Bernard v. Public Service Alliance of Canada, 2017 FCA 35; Vancouver Airport Authority v. Commissioner of Competition, 2018FCA 24, [2018] 3 F.C.R. 633; Canadian Copyright Licensing Agency (Access Copyright) v. Alberta, 2015 FCA 268, [2016] 3 F.C.R. 19;RJR-MacDonald Inc. v. Canada (Attorney General), (SCC), [1995] 3 S.C.R. 199, (1995), 127 D.L.R. (4th) 1; GitxaalaNation v. Canada, 2016 FCA 187, [2016] 4 F.C.R. 418; Charkaoui v.

Canada (Citizenship and Immigration), 2008 SCC 38, [2008] 2S.C.R. 326; Health Services and Support-Facilities Subsector Bargaining Association v. British Columbia, 2002 BCSC 1509, 8 B.C.L.R.(4th) 281; Teksavvy Solutions Inc. v. Bell Media Inc., 2020 FCA 108, 174 C.P.R. (4th) 85; RJR-MacDonald Inc. v. Canada (AttorneyGeneral), (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689; Benhaimv. St-Germain, 2016 SCC 48, [2016] 2 S.C.R. 352; Canada v.

South Yukon Forest Corporation, 2012 FCA 165, 431 N.R. 286; Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; Pfizer Canada Inc. v. Teva Canada Limited, 2016 FCA 161, 400 D.L.R. (4th) 723; R. v.Munoz (2006), (ON SC), 86 O.R. (3d) 134, 38 C.R. (6th) 376 (S.C.J.); H.L. v. Canada (Attorney General), 2005 SCC25, [2005] 1 S.C.R. 401; Canada (Attorney General) v. Barnaby, 2015 SCC 31, [2015] 2 S.C.R. 563; R. v. White,(SCC), [1999] 2 S.C.R. 417, (1999), 174 D.L.R. (4th) 111; Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9, [2007] 1S.C.R. 350; United States v.

Burns, 2001 SCC 7, [2001] 1 S.C.R. 283; Suresh v. Canada (Minister of Citizenship and Immigration), 2002SCC 1, [2002] 1 S.C.R. 3; RWDSU v. Dolphin Delivery Ltd., (SCC), [1986] 2 S.C.R. 573, (1986), 33 D.L.R. (4th) 174;Canada v. Schmidt, (SCC), [1987] 1 S.C.R. 500, (1987), 39 D.L.R. (4th) 18; Kindler v. Canada (Minister of Justice),(SCC), [1991] 2 S.C.R. 779, (1991), 84 D.L.R. (4th) 438; Schreiber v. Canada (Attorney General),(SCC), [1998] 1 S.C.R. 841, (1988),158 D.L.R. (4th) 577; R. v. Harrer, (SCC), [1995] 3 S.C.R. 562, (1995), 128 D.L.R.(4th) 98; R. v.

Terry, (SCC), [1996] 2 S.C.R. 207, (1996), 135 D.L.R. (4th) 214; Reference Re Ng Extradition (Can.),(SCC), [1991] 2 S.C.R. 858, (1991), 84 D.L.R. (4th) 498; United States of America v. Jamieson,(SCC), [1996] 1 S.C.R. 465, (1996), 197 N.R. 1; United States v. Whitley, (SCC), [1996] 1 S.C.R. 467, (1996), 132 2017 SCC 44, [2017] 2 S.C.R. 127; R. v. Heywood, (SCC), [1994] 3 S.C.R. 761, (1994), 120 D.L.R. (4th) 348; Steel v.Canada (Attorney General), 2011 FCA 153, [2013] 1 F.C.R. 143; Defence Construction Canada v.

Ucanu Manufacturing Corp., 2017FCA 133, [2018] 2 F.C.R. 269; Reference re Same-Sex Marriage, 2004 SCC 79, [2004] 3 S.C.R. 698; Dagenais v. CanadianBroadcasting Corp., (SCC), [1994] 3 S.C.R. 835, (1994), 120 D.L.R. (4th) 12; R. v. Crawford, (SCC),[1995] 1 S.C.R. 858, (1995), 96 C.C.C. (3d) 481; Sandhu Singh Hamdard Trust v. Navsun Holdings Ltd., 2019 FCA 295, 169 C.P.R.(4th) 325; Canada v. Piot, 2019 FCA 53, 437 D.L.R. (4th) 706; R. v. Secretary of State for the Home Department, [2002] UKHL 36,[2003] 1 A.C. 920.

AUTHORS CITED French, Richard. “The Privy Council Office: Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and John C.Terry, eds., The Canadian Political Process, 3rd ed. Toronto: Holt Rinehart and Winston of Canada, 1979. Grey, J. H. “Sections 96 to 100: A Defense” (1985), 1 Admin. L.J. 3. Lederman, Sidney N., Alan W. Bryant and Michelle K. Fuerst. Sopinka, Lederman & Bryant: The Law of Evidence in Canada, 5th ed.Toronto: Lexis Nexis, 2018. Morgan, Brian. “Proof of Facts in Charter Litigation” in Robert J. Sharpe, ed., Charter Litigation, Toronto: Butterworths, 1987.

Regulatory Impact Analysis Statement, SOR/2004-217, C. Gaz. 2004.II.1622.

Warchuk, Paul A. “The Role of Administrative Reasons in Judicial Review: Adequacy and Reasonableness” (2016), 29 Can. J. Admin. L. & Prac. 87 Ward, Norman. Dawson’s The Government of Canada , 6th ed. Toronto: University of Toronto Press, 1987. APPEAL and CROSS-APPEAL from a Federal Court decision ( 2020 FC 770 , [2021] 1 F.C.R. 209 , 448 D.L.R. (4th) 132) concerning the constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada. Appeal allowed; cross-appeal dismissed.

APPEARANCES Martin Anderson, David Knapp, Lucan Gregory and Laura Upans for appellants. Andrew Brouwer, Michael Bossin, Leigh Salsberg, Heather Neufeld, Erin Simpson and Kate Webster for respondents Canadian Council for Refugees, Amnesty International and The Canadian Council of Churches. Prasanna Balasundaram for respondents ABC, DE, FG, Nedira Jemal Mustefa. Jared Will and Joshua Blum for respondents Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi, and Reda Yassin Al Nahass. SOLICITORS OF RECORD Deputy Attorney General of Canada for appellants.

Legal Aid Ontario Refugee Law Office , Toronto, for respondents Canadian Council for Refugees, Amnesty International and The Canadian Council of Churches. Downtown Legal Services , Toronto, for respondents ABC, DE, FG, Nedira Jemal Mustefa. Jared Will & Associates , Toronto, for respondents Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Yassin Al Nahass. The following are the reasons for judgment rendered in English by [ 1 ] Stratas J.A.: The appellants (Canada) appeal from the judgment of the Federal Court ( per McDonald J.): 2020 FC 770 , [2021] 1 F.C.R. 209 , 448 D.L.R. (4th) 132.

The respondents to the appeal (the “Claimants”) cross-appeal. Broadly speaking, the appeal and the cross-appeal concern the constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada.

To understand the nature of the appeal and cross-appeal, a brief description of the background is needed. [ 2 ] As a general matter, refugee claimants arriving from a country designated as a safe country under the Immigration and Refugee Protection Regulations , SOR/2002-227 (the “ Regulations ”) are ineligible to claim refugee protection in Canada: Immigration and Refugee Protection Act , S.C. 2001, c. 27 (the “ Act ”), paragraph 101(1) ( e ). Since 2004, the United States has been designated: Regulations,

section 159.3 . This designation followed an agreement between the United States and Canada, commonly called the Safe Third Country Agreement. [ 3 ] Since that time, many refugee claimants arriving from the United States have been ruled ineligible for refugee protection in Canada. Among these were the individual Claimants.

They and certain advocacy organizations for refugees brought three judicial reviews in the Federal Court. [ 4 ] In their applications for judicial review, the Claimants alleged that the designation of the United States under 9.3 of the Regulations was outside of the authority granted by the Act (i.e., was ultra vires ). The Federal Court rejected that allegation. [ 5 ] The Claimants also alleged that the designation of the United States as a safe third country under

section 159.3 of the Regulations and the resulting ineligibility of refugee claimants in Canada under paragraph 101(1) (

e) of the Act infringed the rights guaranteed by sections 7 and 15 of the Canadian Charter of Rights and Freedoms , being

Part I of the Constitution Act, 1982 ,

Schedule B, Canada Act 1982 , 1982, c 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44] and were not justified as a reasonable limit on rights under

section 1. [ 6 ] The Federal Court agreed that these two provisions infringed

section 7 of the Charter and were not justified under

section 1 . It declared them of no force or effect under

section 52 of the Constitution Act, 1982 . Given this conclusion, the Federal Court found it unnecessary to deal with the

section 15 issues. [ 7 ] The Federal Court stayed its judgment for six months. This Court granted a further stay until final determination of this appeal: Canada (Citizenship and Immigration) v. Canadian Council for Refugees , 2020 FCA 181 . [ 8 ] In its appeal, Canada focuses on the Federal Court’s finding of unjustifiable infringement of

section 7 of the Charter . [ 9 ] In their cross-appeal, the Claimants focus on the Federal Court’s decision not to deal with the issues concerning

section 15 of the Charter . They also challenge the Federal Court’s rejection of their ultra vires argument. [ 10 ] For the reasons that follow, I would allow the appeal, dismiss the cross-appeal, set aside the judgment of the Federal Court and dismiss the applications for judicial review. A. Preliminary issues

(1) Is the cross-appeal improper? [11] Canada submits that the Claimants’ cross-appeal is improper and should be summarily dismissed. [12] Canada’s submission is well founded. A cross-appeal lies when a party “seeks a different disposition of the [judgment] appealedfrom”: rule 341 of the Federal Courts Rules, SOR/98-106. “[D]ifferent disposition” means a remedy that will have real-life, practicalconsequences for the party cross-appealing. A cross-appeal does not lie simply because a party is dissatisfied with the reasons forjudgment: Ratiopharm Inc. v.

Pfizer Canada Inc., 2007 FCA 261, 367 N.R. 103, at paragraphs 6 and 12. [13] In the Federal Court, two sets of Claimants sought a specific declaration that

section 15 of the Charter was infringed. All of theClaimants sought a specific declaration that

section 159.3 of the Regulations was ultra vires. The Federal Court did not grant thesespecific declarations. [14] But the Federal Court’s failure to grant these declarations does not have any real-life, practical consequences for the Claimants:they wanted the two provisions struck down and they were struck because they infringed

section 7. The Claimants take issue with theFederal Court’s reasons, not its judgment. Therefore, I would dismiss the cross-appeal.

(2) Are the

section 15 and vires issues properly before this Court? [15] Canada also submits that the

section 15 and vires issues are not properly before this Court. [16] This Court can hear and determine appeals under the Act when the Federal Court has certified a proper question for itsconsideration or where one of the narrow common law exceptions applies: paragraph 74(d). The Federal Court included

section 15 in thecertified question even though it did not deal with

section 15. Because of this, Canada submits that the Federal Court should not haveincluded

section 15 in the certified question. [17] We need not consider this submission. Canada accepts that, aside from the inclusion of

section 15, this Court has a propercertified question before it concerning

section 7 of the Charter. Once there is a proper certified question before the Court, all issues thatmight affect the outcome of the appeal, including, here, the

section 15 and vires issues, are before the Court: Mahjoub v. Canada(Citizenship and Immigration), 2017 FCA 157, [2018] 2 F.C.R. 344, at paragraph 50 and authorities cited therein. The Claimants canadvance any argument to sustain the judgment below: R. v. Nova Scotia Pharmaceutical Society, (SCC), [1992] 2 S.C.R.606, at page 621, (1992), 93 D.L.R. (4th) 36. [18] As a result, all issues that were before the Federal Court are now before this Court. B. The Safe Third Country Agreement, the legislative scheme and an administrative policy

(1) Description [19] In 2002, Canada and the United States entered into an agreement, commonly called the Safe Third Country Agreement, to shareresponsibility for refugees: Agreement between the Government of Canada and the Government of the United States of America forCooperation in the Examination of Refugee Status Claims from Nationals of Third Countries, United States and Canada, 5 December2002, [2004] Can. T.S.

No. 2 (entered into force on December 29, 2004). [20] Under the Safe Third Country Agreement, refugee claimants must request refugee protection in the first country, Canada or theUnited States, that they arrive in unless they qualify for an exception. Exceptions include claimants who have family in Canada andunaccompanied minors. The Safe Third Country Agreement also does not apply to those who enter Canada irregularly or to mostindividuals who arrive by sea or by air. [21] Thus, those who arrive in the United States must claim refugee status in the United States under United States law.

They cannotleave the United States and claim refugee status in Canada at a land port of entry. If they do so, Canada can refuse to consider theirrefugee claim and, if they have no other legal basis for remaining in Canada, return them to the United States. [22] Like all other international instruments, the Safe Third Country Agreement, by itself, does not have force of law in Canada. Itmust be implemented by Canadian legislation. That has happened. [23] The legislative scheme is an interrelated one with many moving parts. It is supplemented by an Order in Council.

And beneath itis an administrative policy that tells us how one aspect of this legislative scheme—continual reviews of the designation of a foreigncountry under subsection 102(3) of the Act—is supposed to work. In describing this legislative scheme, the Court draws in part upon itsearlier analysis in Canadian Council for Refugees v.

Canada, 2008 FCA 229, [2009] 3 F.C.R. 136 [Canadian Council for Refugees],leave to appeal to S.C.C. refused February 5, 2009, [2009] 1 S.C.R. vi. [24] The legislative scheme reflects the philosophy that “where a refugee claimant could have sought protection in another safecountry, it is reasonable and appropriate to require the refugee claimant to return and make use of that opportunity”: Regulatory ImpactAnalysis Statement, SOR/2004-217,

section 2, C. Gaz. 2004.II.1622, at page 1622;. By implementing this philosophy, Canada can sharewith other countries “the responsibility for providing protection to those in need, improve the efficacy of the refugee determinationsystem and restore public confidence in that system” (at 1622). [25] The legislative scheme begins with subsection 99(3) of the Act. It provides that those who arrive at a port of entry in Canada andintend to claim refugee status must make that claim to an immigration officer.

Upon receiving the claim, the officer must determinewhether it is eligible to be referred to the Refugee Protection Division for adjudication. One circumstance of ineligibility is where “theclaimant came directly or indirectly to Canada from a country designated by the regulations”: paragraph 101(1)(

e) of the Act. [26] Subsection 102(1) of the Act authorizes the making of regulations designating a country. A country can be designated having

regard to four factors. [ 27 ] The first factor is that the country has entered into a safe third country agreement or, in the words of paragraph 102(2) (

d) of the Act , “an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.” In this case, the Safe Third Country Agreement is such an agreement. [ 28 ] Subsection 102(2) of the Act sets out the remaining three factors: “whether the country is a party to the Refugee Convention and to the Convention Against Torture”, the “policies and practices” of the country concerning “claims under the Refugee Convention and … obligations under the Convention Against Torture”, and the “human rights record” of the country. [ 29 ] In 2004, the Governor in Council designated the United States under

section 159.3 of the Regulations : [ Regulations Amending the Immigration and Refugee Protection Regulations ], SOR/2004-217,

section 2. At that time, it concluded that the United States met all four factors for designation under subsection 102(2): Canadian Council for Refugees . [ 30 ] The power to designate a country based on the subsection 102(2) factors includes the power to revoke designation of a country based on those same factors:

Interpretation Act , R.S.C., 1985, c. I-21, subsection 31(4) . Revocation of designation can be achieved by repealing the regulatory provision designating the foreign country (here 159.3 of the Regulations ).

Revocation of designation might happen if the foreign country enacts new legislation, issues new executive orders, renders new judicial decisions or adopts administrative practices that bring it out of compliance with the subsection 102(2) factors. [ 31 ] Recognizing the possibility of revocation based on non-compliance with the subsection 102(2) factors, Parliament created a mechanism to monitor the designated country’s compliance on an ongoing basis.

Subsection 102(3) of the Act provides the mechanism: “continuing review” of the foreign country’s compliance with the four factors. [ 32 ] Subsection 102(3) does not stand alone. It leaves certain questions unanswered. What does “continuing review” mean? What sort of “review”? Who should do it? What should be looked at in a review? [ 33 ] In 2004, the Governor in Council made an Order in Council that answers some of these questions.

In 2015, that Order in Council was replaced by a new one which is still in force: Directives for Ensuring a Continuing Review of Factors Set Out in Subsection 102(2) of the Immigration and Refugee Protection Act with Respect to Countries Designated Under Paragraph 102(1)(

A) of That Act (2015) , P.C. 2015-0809, online: < https://orders-in-council.canada.ca/attachment.php?attach=31132&lang=en >. And an administrative policy also helps to answer them: Immigration, Refugees and Citizenship Canada, Monitoring Framework for the U.S. Designation As a Safe Third Country , June 2015 (Baril affidavit, sworn October 11, 2019, Exhibit E, appeal book, Vol. 37, page 15662–15667). [ 34 ] The 2015 Order in Council requires “a continuing review of factors set out in subsection 102(2) ” to ensure the designation of the United States as a safe third country remains appropriate.

The Minister of Citizenship and Immigration is to “undertake a review, on a continual basis, of the factors set out in subsection 102(2) of the Immigration and Refugee Protection Act with respect to the United States” by “monitoring those factors on a regular basis”. The “Minister must report to the Governor in Council on that review when the circumstances warrant”. [ 35 ] Under the 2015 Order in Council, if the Minister’s review of the subsection 102(2) factors favours continuing the designation, the Minister need not do anything.

But if the Minister’s review detects problems that warrant the Governor in Council’s attention, the Minister must make a report to the Governor in Council. Upon receiving the report, the Governor in Council considers whether the designation of the foreign country should be revoked. [ 36 ] Why was the Governor in Council given the responsibility to decide on matters of designation and revocation? Answering this question helps to shed light on the nature and content of the Governor in Council’s decision: League for Human Rights of B’Nai Brith Canada v.

Canada , 2010 FCA 307 , [2012] 2 F.C.R. 312 , at paragraph 76 . [ 37 ] The Governor in Council is the “Governor General of Canada acting by and with the advice of, or by and with the advice and consent of, or in conjunction with the Queen’s Privy Council for Canada”:

Interpretation Act , R.S.C., 1985, c. I-21, subsection 35(1) , and see also the Constitution Act, 1867 , 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982 , 1982, c. 11 (U.K.),

Schedule to the Constitution Act, 1982 , Item 1 [R.S.C., 1985, Appendix II, No. 5], sections 11, 13 and 91. All the ministers of the Crown, not just the Minister, are active members of the Queen’s Privy Council for Canada. They meet in a body known as Cabinet.

Cabinet—sitting at the apex of the executive of the Canadian government—is “to a unique degree the grand co-ordinating body for the divergent provincial, sectional, religious, racial and other interests throughout the nation” and, by convention, it attempts to represent different geographic, linguistic, religious, and ethnic groups: Norman Ward, Dawson’s The Government of Canada , 6th ed. (Toronto: University of Toronto Press, 1987), at pages 203–204; Richard French, “The Privy Council Office: Support for Cabinet Decision Making” in Richard Schultz, Orest M. Kruhlak and John C.

Terry, eds., The Canadian Political Process , 3rd ed. (Toronto: Holt Rinehart and Winston of Canada, 1979) at pages 363-394. All the levers of government are present at the Cabinet table. [ 38 ] In response to a report from the Minister raising concerns, the Governor in Council can consider whether to maintain the foreign country’s designation or revoke it. But given its status, nature and powers, the Governor in Council can do much more.

It can authorize diplomatic, state-to-state discussions with the government of the foreign country to try to fix anything that casts into doubt the country’s compliance with the subsection 102(2) factors. From those discussions, it may learn of developments that could impact on the designation but it may also learn that the foreign country will address these developments through new initiatives. It can also amend the Regulations and tailor the exceptions under the scheme to address any new developments: paragraph 102(1)(

c) of the Act and

Article 6 of the Safe Third Country Agreement. It may have other policy considerations to consider. It may ask for further investigations to be made. This is not necessarily an exhaustive list. [ 39 ] To assist in the conducting of subsection 102(3) reviews, an administrative policy has been developed. It is entitled, “Monitoring Framework for the U.S. Designation as a Safe Third Country”. [ 40 ] The Monitoring Framework requires subsection 102(3) reviews to focus on systemic concerns in the United States, not isolated

incidents. The reviews are “to track developments in the U.S.” that “would considerably weaken the level of human rights and refugee protection that the U.S. provides” and, thus, cast doubt “on its ability to continue to meet the criteria for designation as a safe third country”. It requires subsection 102(3) reviews to be conducted continually so that Immigration, Refugees and Citizenship Canada can “identify, in a timely manner, changes in the U.S.” that might affect “its status as a safe third country”.

This furthers “responsible action and decision-making” on whether the designation of the United States remains appropriate. [ 41 ] The Monitoring Framework requires subsection 102(3) reviews to examine two sets of indicators: • Indicators concerning significant changes in the United States refugee protection system . These include how the United States applies the non-refoulement principle, how it applies exclusion clauses in the United Nations Conventions Relating to the Status of Refugees [July 28, 1951, [1969] Can. T.S.

No. 6] (e.g., clauses 1E and 1F), its consistency and quality of adjudication, whether refugee claimants have effective access to counsel, the United States’ practices of detention and the operation of its judicial system. • Indicators to monitor the human rights record of the United States . These include the observance in the United States of the rights contained in “long-standing core U.N. human rights legal instruments”: life, liberty and security of the person, access of refugee claimants to an independent judiciary, civic and political freedoms, the rights of non-citizens, and freedom from discrimination.

These help to ensure that subsection 102(3) reviews are detailed and thorough. [ 42 ] Both indicators are to be examined using quantitative and qualitative information from a wide variety of governmental and non- governmental sources, such as documents from U.N. sources, publications of international human rights organizations and supra-national and regional organizations, international media, U.S. government publications and reports from reputable non-government organizations such as the Claimants, the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches. [ 43 ] Other portions of the Act are potentially relevant and, thus, form part of this legislative scheme.

Under the Act, Canadian immigration officers, upon finding a claimant is ineligible, have a number of powers and discretions. These include: • Issuing a temporary residence permit under subsection 24(1) of the Act ; • Deferring removal upon request if the officer finds that exceptional circumstances exist based on evidence of risk of death, extreme sanction, or inhumane treatment: Revell v. Canada (Citizenship and Immigration) , 2019 FCA 262 , [2020] 2 F.C.R. 355 , at paragraphs 50–52 ; Shpati v.

Canada (Public Safety and Emergency Preparedness) , 2011 FCA 286 , [2012] 2 F.C.R. 133 ; • Transferring the matter to Immigration, Refugees and Citizenship Canada when an officer determines there are exceptional circumstances. Based on humanitarian and compassionate considerations or public policy considerations, Immigration, Refugees and Citizenship Canada can decide whether to grant access to the Refugee Protection Division by waiving either the ineligibility finding under paragraph 101(1) (

e) of the Act or the pre-removal risk assessment bar under paragraph 112(2) (

b) of the Act : Act, sections 25 , 25.1 and 25.2 . [ 44 ] As well, refugee claimants have access to the Federal Court if they believe the circumstances of their removal warrant the Court’s intervention: Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2020] 1 F.C.R. 700 , at paragraph 87 ; Brown v. Canada (Citizenship and Immigration) , 2020 FCA 130 , [2021] 1 F.C.R. 53 , at paragraphs 158–159 . [ 45 ] This Court’s case law shows that these powers and discretions can work to alleviate harsh effects caused by the Act : see Atawnah v.

Canada (Public Safety and Emergency Preparedness) , 2016 FCA 144 , [2017] 1 F.C.R. 153 , at paragraphs 13–23 ; Tapambwa , at paragraphs 87–88 ; Revell , at paragraphs 50–52 ; Brown , at paragraphs 150–159 .

(2) Assessment and conclusion [ 46 ] Paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations are part of an interrelated legislative scheme. The two sections do not sit alone and in isolation. It is artificial to view and analyze them in the abstract, all the more so after a foreign country has been designated.

After designation, subsection 102(3) reviews are to take place continually to ensure that designation remains appropriate. [ 47 ] Put another way, if someone were to ask why a foreign country continued to be designated, say, in 2017 when the applications for judicial review in this case were brought, the answers are to be found not in the original designation in 2004 but in one or more subsection 102(3) reviews conducted up to that time, the failure to conduct reviews, the failure to conduct them properly or the failure to refer matters to the Governor in Council for assessment and decision, the findings and recommendations in those reviews, and the Governor in Council’s reactions or non-reactions to those findings and recommendations.

For the purposes of these reasons, all these activities shall be described as “ subsection 102(3) reviews and related administrative conduct”. At a higher level, one also could query whether subsection 102(3), the 2015 Order in Council, the Monitoring Framework and the reviews have been designed properly and have been working as they should. C. The Claimants’ Charter challenge is not properly constituted

(1) The true nature of the Claimants’ Charter challenge [ 48 ] Before us is an appeal from applications for judicial review in the Federal Court. We must begin by identifying the “real essence” and “essential character” of the applications. We do this by “reading [them] holistically and practically without fastening onto matters of form”: JP Morgan Asset Management (Canada) Inc. v.

Canada (National Revenue) , 2013 FCA 250 , [2014] 2 F.C.R. 557 , at paragraphs 49–50 . [ 49 ] All of the applications challenge the decision of an officer at an entry point who found the individual Claimants’ claims for refugee protection to be ineligible for referral to the Refugee Protection Division under paragraph 101(1) (

e) of the Act because of the

designation of the United States under

section 159.3 of the Regulations. All allege that the officer had no power to do that because thosetwo provisions were invalid. [50] Invalidity is alleged to stem from two problems, ultra vires and the Charter. The ultra vires issue will be canvassed later in thesereasons. [51] The Claimants say the two provisions cause effects that are contrary to

section 7,

section 15 or both. The Claimants also say thetwo provisions are not justified under

section 1 and must be struck down under

section 52 of the Constitution Act, 1982. [52] The Claimants do not say that other provisions, statutory instruments or policies are invalid because they cause effects contraryto the Charter. In particular, the Claimants do not seek to invalidate subsection 102(3), the 2015 Order in Council or the MonitoringFramework.

Nor do they say that these matters are part of the cause of any unconstitutional effects caused by the two provisions. [53] As well, in their applications, the Claimants do not challenge any subsection 102(3) reviews and related administrative conduct.For example, they do not challenge or seek remedies concerning administrative conduct in relation to subsection 102(3) reviews, theoutcome of reviews that left the designation in place, reports to the Governor in Council or the failure to report to the Governor inCouncil, or any decisions at any time by the Governor in Council to keep the designation in place.

None of these things are said to bepart of the cause of any unconstitutional effects. In their memorandum of fact and law, the Claimants do make submissions alleginginadequacies in the subsection 102(3) reviews, but only in support of their submission that the designation of the United States as a safecountry is ultra vires the Act. [54] Thus, the real essence and essential character of the Claimants’ applications is a challenge to paragraph 101(1)(

e) of the Act andsection 159.3 of the Regulations, and only those two provisions. Alone and in isolation they are said to cause unconstitutional effects.Based on this, as we shall see, the evidentiary record that developed in the Federal Court concentrated on general effects of thedesignation of the United States, often described in terms of individual incidents rather than the subsection 102(3) reviews and relatedadministrative conduct and their effect. [55] The Claimants’ applications do not fit with the nature of the legislative scheme. To reiterate, paragraph 101(1)(

e) of the Act andsection 159.3 of the Regulations do not sit alone and in isolation. They are part of an interrelated legislative scheme. And afterdesignation, the real cause of any continued designation or decision to revoke it is the subsection 102(3) reviews and relatedadministrative conduct.

(2) The nature of the Charter and the basic requirements for a challenge under it [56] The Charter sets out rights and freedoms and guarantees them subject only to such reasonable limits prescribed by law as can bedemonstrably justified in a free and democratic society. But nowhere does the Charter invite courts to depart from their role as courts.Nor does it invite judges—career lawyers who happen to hold a judicial commission—to follow whatever procedures they wish. Rather,the Charter is a document of law, surrounded, suffused and sustained by law.

In fact, tens of thousands of cases have been decided underit, a veritable mountain of guidance. [57] From this mountain, certain immutable principles bind us all. One of the most basic is that Charter claimants must show thatsome state action—for example, legislation or administrative conduct by state officials—has caused an infringement of rights orfreedoms.

Inherent in this are two requirements: the Charter claimants must identify the state action responsible for the infringement,i.e., demonstrate a causal link between the state action and the infringement, and place enough evidence before the Court to provecausation and infringement. See, e.g., Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, at pages 447and 490, (1985), 18 D.L.R. (4th) 481; Symes v. Canada, (SCC), [1993] 4 S.C.R. 695 at pages 764–765, (1993), 110D.L.R. (4th) 470; Blencoe v.

British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, at paragraph 60;Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101, at paragraphs 73–78; Kazemi Estate v. Islamic Republic ofIran, 2014 SCC 62, [2014] 3 S.C.R. 176, at paragraphs 126 and 131–134; R. v. Kokopenace, 2015 SCC 28, [2015] 2 S.C.R. 398, atparagraphs 251–254 and cases cited therein. Common to these requirements is causation. Causation is key. [58] From this, two practical rules have emerged in the jurisprudence: (

a) Legislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged: Canada(Attorney General) v. PHS Community Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134 [PHS Community Services]. The provisions,taken in isolation, may not have caused the Charter infringement. Other related provisions may be responsible or may prevent or cureany possible defects. This sort of artificial and narrow challenge often results in the creation of an unduly artificial and narrow evidentiaryrecord. (

b) Where administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation,must be challenged: Little Sisters Book and Art Emporium v. Canada (Minister of Justice), 2000 SCC 69, [2000] 2 S.C.R. 1120.Challenging the legislation and ignoring the administrative action or administrative inaction will not satisfy the requirement of causationbetween the state action and the rights infringement.

This can also lead to the development of an unduly artificial and narrow evidentiaryrecord. [59] In considering a Charter challenge, another basic principle must be kept front of mind: courts are courts and have to act likecourts. Thus, courts can deal only with the challenge the Charter challengers have advanced and courts can work only with the evidencethe parties have offered concerning that challenge. Courts cannot go beyond the challenge and address a different challenge. Nor canthey help themselves to evidence as if they are a roving commission of inquiry.

Instead, courts dealing with a Charter challenge are“firmly grounded in the discipline of the common law methodology”: Brian Morgan, “Proof of Facts in Charter Litigation” in Robert J.Sharpe, ed., Charter Litigation (Toronto: Butterworths, 1987), 159 at page162, cited with approval by the Supreme Court in MacKay v.Manitoba, (SCC), [1989] 2 S.C.R. 357, at page 363, (1989), 61 D.L.R. (4th) 385 and Danson v. Ontario (AttorneyGeneral), (SCC), [1990] 2 S.C.R. 1086, at pages 1099–1101, (1990), 73 D.L.R. (4th) 686.

(3) Application of these principles to the Claimants’ Charter challenge [ 60 ] The Claimants’ Charter challenge offends the two practical rules. The fundamental requirement of causation that underlies both rules has not been met. This has also rendered the evidentiary record on key issues too thin to permit responsible adjudication. As a result, the Claimants’ Charter challenge must be dismissed. (

a) Applying the two practical rules (

i) Legislative sections cannot be taken in artificial isolation and selectively challenged [ 61 ] Assuming for the moment that there is a Charter infringement in this case, what caused it? As the analysis of the legislative scheme in

section B of these reasons shows, subsection 102(3) reviews play a pivotal role in ensuring that continued designation remains appropriate. In this case, the cause of any infringement is not the designation of the United States 17 years ago but the subsection 102(3) reviews and related administrative conduct that has caused the designation to continue. It was incumbent on the Claimants to challenge that. [ 62 ] But they did not do that. Instead, they plucked two provisions out of this complex, interrelated legislative scheme and have singled them out for attack. This was wrong.

By attacking those two provisions and only those two—as if the rest of the legislative scheme and administrative conduct under that scheme does not exist—the Claimants have created a strawman and have asked us to decide on its constitutionality. This we cannot do. Courts deciding constitutional cases with big public impact do not deal with strawmen. [ 63 ] This is fatal to the Claimants’ challenge: PHS Community Services , above. [ 64 ] In PHS Community Services , the Supreme Court considered the Controlled Drugs and Substances Act , S.C. 1996, c. 19 . That Act is structurally similar to the Act in this case.

Like this case, the relevant provisions of the Controlled Drugs and Substances Act consisted of a general provision whose effects are mitigated by a provision elsewhere in the legislative scheme. Specifically, the Controlled Drugs and Substances Act prohibited the possession of certain drugs and substances ( subsection 4(1) ) but allowed the Minister of Health to grant exemptions from the prohibition (section 56). [ 65 ] The Charter claimant in PHS Community Services , the Insite safe injection facility, challenged the general provision, subsection 4(1), arguing that it violated

section 7 of the Charter and was not saved under

section 1 . Just like the Claimants here, Insite argued that the general provision was grossly disproportionate and overbroad. [ 66 ] The Supreme Court unanimously dismissed Insite’s Charter challenge. The challenge was directed against the general provision, subsection 4(1), “in isolation” rather than “in the context of other provisions … notably s. 56” (at paragraph 109).

In words apposite to the Claimants’ challenge in the case before us, the Supreme Court observed that if the general provision operated in isolation, with “no provision for exemptions”, the “assertions that it is arbitrary, overbroad and disproportionate in its effects might gain some traction” (at paragraph 109). But the general prohibition did not operate that way. It worked hand in hand with the mitigating provision,

section 56 . [ 67 ] The Supreme Court concluded that the “constitutional validity of s. 4(1) of the Act cannot be determined without considering the provisions in the Act designed to relieve against unconstitutional or unjust applications of that prohibition” (at paragraph 109). Subsection 4(1) was interrelated to and could not be separated from

section 56 . In the Supreme Court’s view,

section 56 acted “as a safety valve that prevents [the general provision] from applying where such application would be arbitrary, overbroad or grossly disproportionate in its effects” (at paragraph 113). [ 68 ] Thus, the Charter challenge had to be brought against all relevant parts of the legislative scheme, not just the general provision in isolation. As this was not done, the challenge against the general provision was dismissed. [ 69 ] But the Supreme Court went further.

It held that the entire legislative scheme, consisting of the general provision and the safety valve, was constitutional (at paragraph 114). Any problem with constitutionality was “not in the statute but in the Minister’s exercise of the power the statute gives him to grant appropriate remedies” against any effect causing a Charter violation (at paragraph 114). Here, the Supreme Court suggests that the challenge in PHS Community Services properly lay against the Minister’s discretionary decision refusing an exemption from the general prohibition. [ 70 ] Just as in PHS Community Services , paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations cannot be challenged in isolation. A safety valve in the legislative scheme in issue here is the review procedure under subsection 102(3). In this case, if there are effects contrary to the Charter , they stem not from paragraph 101(1)(

e) of the Act and

section 159.3 of the Regulations but from the subsection 102(3) reviews and related administrative conduct. This Court has previously dismissed challenges to the Act that artificially isolate provisions: de Guzman v. Canada (Minister of Citizenship and Immigration) , 2005 FCA 436 , [2006] 3 F.C.R. 655 , at paragraph 81 ; Sogi v.

Canada (Minister of Citizenship and Immigration) , 2004 FCA 212 , [2005] 1 F.C.R. 171 , at paragraph 23 . [ 71 ] Fundamentally then, PHS Community Services holds that a Charter challenge must be directed to the state action—legislation or administrative conduct—that causes the Charter infringement. In this regard, it stands alongside and is bolstered by the Supreme Court authority on the requirement of causation cited at paragraph 57 of these reasons. [ 72 ] In oral argument, the Claimants submit that PHS Community Services actually supports their position.

After all, in PHS Community Services , the Supreme Court, using the Charter , ordered the Minister to grant Insite its exemption from the general prohibition. Counsel urges this Court to apply PHS Community Services , grant Charter relief here, and end the designation of the United States as a safe third country. [ 73 ] However, PHS Community Services and this case are not identical.

In PHS Community Services , the challengers sought a declaration of the constitutional invalidity of the general prohibition in the Controlled Drugs and Substances Act just like the Claimants here sought a declaration of the constitutional invalidity of two designation sections. But in PHS Community Services , the challengers went further than that. They challenged administrative conduct—the Minister’s failure to grant exemptions—that caused individual

rights breaches and sought individual remedies under

section 24 [of the Charter], including a declaration that the failure of the Ministerto grant exemptions to individuals violated

section 7 rights (at paragraph 116). Here, the Claimants have not done this. [74] In paragraph 58 of these reasons, I mentioned that failing to challenge the matter that is the real cause of the infringement oftenleads to the development of an unduly artificial and narrow evidentiary record, one that does not speak to the real cause of the Charterinfringement. This has happened here. The subsection 102(3) reviews and related administrative conduct are the real causes of theinfringement, if there is one.

But the evidence before us in this case on subsection 102(3) reviews and related administrative conduct islimited because they were not the focus of the Claimants’ challenge. Much more evidence concerning subsection 102(3) reviews andrelated administrative conduct would have appeared in this record had they been the focus of the Claimants’ challenge.

We cannot beconfident that this record, hobbled by the way the Claimants have cast their challenge, is sufficient for us to adjudicate the Charter issuesresponsibly. [75] By way of illustration, the most recent reports from subsection 102(3) reviews were issued just before and after the Charterchallenges in this case, in December 2016, March 2017 and February 2018, likely covering events right around the time of thechallenges: Reasons of the Federal Court, at paragraph 77. Yet, the Federal Court tells us that not even “the content of these reportswas…in evidence”: reasons of the Federal Court, at paragraph 78.

All that the Federal Court could surmise (at paragraph 78) was that“reporting continued after the 2015 [Order in Council]”. The reviews underlying these reports—to say nothing of the materialadministrative officials might have considered when preparing these reviews—could contain evidence of the sort described at paragraphs34–42 and 47 of these reasons. In this case, much of this valuable evidence is missing or is in bits and pieces, highly redacted in manyplaces due to assertions of privilege by Canada.

But the Claimants advised us at the hearing that they did not object to or challenge these,in effect acquiescing to Canada’s non-disclosure. As a result, right where any Charter assessment must focus—the subsection 102(3)reviews and related administrative conduct, including any reports—lies a great big hole. [76] The legal question for this Court “is whether the appeal record provides sufficient facts to permit the Court to adjudicate properlythe issues raised”: R. v. Mills, (SCC), [1999] 3 S.C.R. 668, (1999), 180 D.L.R. (4th) 1, at paragraph 37. The answer isno.

The evidentiary basis is too incomplete to allow for an informed Charter adjudication on what really matters in this case. [77] The Claimants submit that the evidentiary record is voluminous and, thus, was adequate. Voluminous it was, particularlyconcerning the experiences of some refugee claimants in the United States and the experiences of some refugee claimants in Canada whowere returned to the United States. But the value of evidence is not measured by the pound. [78] As shall be seen in the discussion of the Federal Court’s treatment of the

section 7 issues, some of this evidence, althoughvoluminous, is somewhat piecemeal and individualized and, thus, is problematic for drawing system-wide inferences concerning thesituation in the United States. Immigration, Refugees and Citizenship Canada noted similar problems with a report, prepared by two ofthe Claimants, that urged the Minister to revoke the designation of the United States: memorandum to the Minister entitled “AmnestyInternational and Canadian Counsel for Refugees Report Contesting the U.S. Designation as a Safe Third Country”, dated July 7, 2017,appeal book, Vol. 39, at pages 16740 and 16741.

Also some of the evidence consists of or is based on media reports whose reliability andadmissibility is open to question. The evidentiary record suffers from other problems too. But the biggest problem of all is that very littleof it concerned the subsection 102(3) reviews and related administrative conduct, a storehouse of some of the best available evidence. Aswill be discussed shortly, if their Charter challenge were properly constituted, the Claimants could have pursued this evidence, assertedand maintained objections to non-disclosure and litigated the objections.

And, as will also be discussed shortly, measures could havebeen taken to ensure that a judicial review would be available, effective, and fair. [79] At one point in the hearing, the Claimants seemed to suggest that the requirement of a sufficient evidentiary record before theCourt is just a technicality. A foundational case from the Supreme Court rejects this. The sufficiency of evidence is “not … a meretechnicality” but is “a flaw that is fatal” because it “is essential to a proper consideration of Charter issues”.

Deciding Charter cases in “afactual vacuum” would “trivialize” the Charter and cause “ill-considered opinions” in cases “of fundamental importance to Canadiansociety” that “profoundly affect the lives of Canadians and all residents of Canada.” No one can “expect a court to deal with [a Charterissue where there is]…a factual void”. And “the unsupported hypotheses of enthusiastic counsel” cannot fill that void. See MacKay, atpages 361–362 and 366 S.C.R. [80] This especially matters where, as here, the allegation of unconstitutionality stems from the alleged effects of the impugnedprovision. In Danson,

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