YUSHAN YAO Appellant, v. HIS MAJESTY THE KING,, 2024 TCC 19

Docket: 2018-1471(IT)I BETWEEN: YUSHAN YAO Appellant, and HIS MAJESTY THE KING, Respondent, and INCOME SECURITY ADVOCACY CENTRE, Intervenor. Appeal heard on common evidence with the appeal of Ning Jing Zhang (2020-1041(IT)

G) on November 22, 23 and 24, December 16 and 17, 2021 and March 29 and 30, April 11, 12 and 13, June 1 and 2, October 27 and 28, 2022 at Toronto, Ontario Final written submissions completed and received on April 25, 2023 Before: The Honourable Justice Randall S.

Bocock Appearances : Co-Counsel for the Appellant: Alexander Cobb Andrew Boyd Graeme Rotrand Ada Chan Jacky Chiu Counsel for the Respondent: Arnold Bornstein Alexander Hinds Laoura Christodoulides Counsel for the Intervenor: Nabila Qureshi Adrian Merdzan JUDGMENT WHEREAS the Court has on this date published its common Reasons for Judgment attached in this appeal and the appeal of Ning Jing Zhang v His Majesty the King , docket 2020-1041(IT)G; NOW THEREFORE THIS COURT ORDERS that: 1 . the appeal concerning the Canada Child Tax Benefit applicable to the 2014 taxation year is dismissed; and 2 . subject only to further submissions, there shall be no costs awarded in the appeal.

Signed at Vancouver, British Columbia, this 15 th day of February 2024. “R. S. Bocock” " " Bocock J. Docket: 2020-1041(IT)G BETWEEN:

NING JING ZHANG, Appellant, and HIS MAJESTY THE KING, Respondent, and INCOME SECURITY ADVOCACY CENTRE, Intervenor. Appeal heard on common evidence with the appeal of Yushan Yao (2018-1471(IT)

I) on November 22, 23 and 24, December 16 and 17, 2021 and March 29 and 30, April 11, 12 and 13, June 1 and October 27 and 28, 2022 at Toronto, Ontario Final written submissions completed and received on April 25, 2023 Before: The Honourable Justice Randall S.

Bocock Appearances : Co-Counsel for the Appellant: Alexander Cobb Andrew Boyd Graeme Rotrand Ada Chan Jacky Chiu Counsel for the Respondent: Arnold Bornstein Alexander Hinds Laoura Christodoulides Counsel for the Intervenor: Nabila Qureshi Adrian Merdzan JUDGMENT WHEREAS the Court has on this date published its common Reasons for Judgment attached in this appeal and the appeal of Yushan Yao v His Majesty the King , docket 2018-1471(IT)I; NOW THEREFORE THIS COURT ORDERS THAT: 1 . the appeal concerning the Canada Child Benefit applicable to the 2016 and 2017 taxation years is dismissed; and, 2 . subject only to further submissions, there shall be no costs awarded in the appeal .

Signed at Vancouver, British Columbia, this 15 th day of February 2024. “R. S. Bocock” Bocock J. Citation: 2024 TCC 19 Date: 20240215 Docket: 2018-1471(IT)I BETWEEN: YUSHAN YAO,

I. INTRODUCTION 5 II. FACTS IN GENERAL 7 III. PART A – CCB ELIGIBILITY 12 Appellant, and HIS MAJESTY THE KING, Respondent, and INCOME SECURITY ADVOCACY CENTRE, Intervenor; Docket: 2020-1041(IT)G AND BETWEEN: NING JING ZHANG, Appellant, and HER MAJESTY THE QUEEN, Respondent, and INCOME SECURITY ADVOCACY CENTRE, Intervenor. COMMON REASONS FOR JUDGMENT TABLE OF CONTENTS A. The Canada Child Benefit 5 B. Part A – CCB Eligibility 5 C. Part B – Constitutional Challenge Under Sections 7 and 15 of the Charter ………..........6 A. CCB Process and Refugee Claimants 7 B. Refugee Claimant Status 7 C. CCTB or CCB Claim Process 7 D. Ms. Yao 7

a) Ms. Yao’s background 7

b) Ms. Yao’s refugee claim history 8

c) Ms. Yao’s CCTB (now CCB) claim history 8

d) Ms. Yao’s testimony concerning her challenges 9 E. Ms. Zhang 10

a) Ms. Zhang’s background 10

b) Ms. Zhang’s refugee claim history 10

c) Ms. Zhang’s CCB claim history 11

d) Ms. Zhang’s testimony concerning her challenges 11 A. Meaning of Temporary Resident 12

a) Excerpt from the ITA 12

IV. PART B – THE CONSTITUTIONAL CHALLENGE 26

b) Excerpts from the IRPA 13

c) Jurisprudence 16 1 . Leading Authority 16

d) Interpretation of the Statutes 19 1 . Immigration vs. Tax Issue 20 2 . Text ……………………………………………………………………………………………….….. 22 3 . Context and Purpose 24 Legislative History ……………………………………………………………………………... 24 International obligation and the CRC ………………………………………………….... 25

e) Conclusion to Part A 25 A. Sections 1 and 15 of the Charter 26 B.

Summary of Expert Evidence 27 C.

Section 7 30

a) Does the legislation affect an interest protected by the right to security of the person?.....…. 31 1 . Is the administration of justice implicated? 31 2 . Can s. 7 protection place a positive obligation on the state? 32 3 . Does s. 7 place a positive obligation on the state in this case? 34 4 . Conclusion 35

b) Does the exclusion of refugee claimants from the CCB deprive the Appellants of their right to security of the person? 36 1 . Is the psychological harm serious and profound? 37 2 . Is there sufficient casual connection? 40

c) Is the deprivation in accordance with the principles of fundamental justice? 41 1 . Arbitrariness 42 2 . Overbreadth 43 3 . Gross disproportionality 43

d) Section 7

Summary 45 D.

Section 15 of the Charter 46

a) Does the impugned law, on its face or in its impact, create a distinction based on enumerated or analogous grounds? 47 1 . Does the law, on its face, create a distinction on the basis of refugee claimant status? 48 2 . Does the law, in its impact, create a distinction on the basis of race and/or sex? 53

b) Does the impugned law impose burdens or deny a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage? 57 1 . Does the law reinforce, perpetuate or exacerbate disadvantage of refugee claimants? 58 2 . Does the law reinforce, perpetuate or exacerbate disadvantage of racialized persons and women?...... 60

c) Section 15

Summary 63 E.

Section 1 63

a) Does the law have a pressing and substantial object? 64

b) Are the means chosen proportional to that object? 65 1 . Rational Connection 65

V. COSTS 70 2 . Minimal Impairment 67 3 . Proportionality between deleterious and salutary effects 68

c) Section 1

Summary 69 F. Remedy 69 Bocock J. I. INTRODUCTION A. The Canada Child Benefit [ 1 ] Parliament created the Canada Child Benefit (the " “CCB” " ) as an income-tested tax-free monthly payment administered by the Canada Revenue Agency (the " “CRA” " ) to help eligible families with the cost of raising children under 18 years of age.

The rules surrounding the CCB are found in Subdivision A.1 of the Income Tax Act . [1] [ 2 ] The CCB was introduced in 2016 to replace the Canada Child Tax Benefit (the " “CCTB” " ) and the Universal Child Care Benefit (the " “UCCB” " ). [2] The CCB differs most significantly from the prior programs in that it is income-based and non-taxable. [3] [ 3 ] To receive the CCB, the taxpayer must live with a child who is under 18 years of age, be primarily responsible for the care and upbringing of the child, be a resident of Canada for tax purposes, and be or be the spouse or common-law spouse of someone who is: a Canadian citizen, a permanent resident, a protected person, or a temporary resident, within the meaning of the Immigration and Refugee Protection Act [4] , or an individual who is registered, or entitled to be registered, under the Indian Act . [5] B.

Part A – CCB Eligibility [ 4 ] Part A of this appeal determines whether refugee claimants are included in the constructive definition of temporary resident and, therefore, are entitled to the CCB. [ 5 ] The Minister excluded Ms. Yao and Ms. Zhang (the " “Appellants” " ) during the relevant periods from the CCB because they were not temporary residents.

The rationale is that, as refugee claimants, they were persons not clothed with a status of sufficient permanence under the IRPA to provide a nexus to Canada above a threshold embedded within the concept of temporary resident. [ 6 ] The Appellants argue that a textual, contextual, and purposive reading of the CCB provisions reveals that refugee claimants are included in the definition of " “temporary resident” " and are therefore eligible for the CCB. C.

Part B – Constitutional Challenge Under Sections 7 and 15 of the Charter [ 7 ] Part B of this appeal determines whether the exclusion of refugee claimants from the CCB violates the Canadian Charter of Rights and Freedoms . [6] [ 8 ] The Appellants claim that interpreting the ITA and the IRPA to exclude refugee claimants from the CCB contravenes their right to security of the person under

section 7 of the Charter in a way that is not within the principles of fundamental justice. [ 9 ] The Appellants also claim that the denying of the CCB contravenes their right to equality under

section 15 of the Charter on the enumerated ground of race or on an analogous grounds of immigration status. Preliminary Note: Intervenor [ 10 ] Throughout these reasons, the position of the Appellants are described as such. To clarify, at the hearing the Intervenor, through counsel, almost invariably proffered submissions -- there was no examination or cross-examination by Intervenor counsel, although offered -- which differed only slightly from counsel for the Appellants, or were entirely compatible. To the extent the Court determines it relevant, specific reference is made to the Intervenor’s submissions. II.

FACTS IN GENERAL A. CCB Process and Refugee Claimants [ 11 ] There are no material facts in dispute in these appeals. It would be simple to list the facts in a truncated narrative form. To do so in these appeals would be facile and unappreciative. The manifest struggle of refugee claimants is a frequent story in Canada, frequently informed and authored by the insensitive political, legal and/or economic structures of foreign regimes. Therefore, although less time might be spent on the facts of the Appellants’ specific stories, the Court expends some effort to ensure that the stories are told. B.

Refugee Claimant Status

[ 12 ] At the relevant times, Ms. Yao, Ms. Zhang and Ms. Zhang’s children were refugee claimants. For part of the period, Ms. Yao was also challenging the decision of the Immigration and Refugee Board (the " “IRB” " ), which rejected her refugee claim, in the Federal Court of Canada ( " “Federal Court” " ). Ms. Yao’s son, however, was a Canadian citizen at all times. C. CCTB or CCB Claim Process [ 13 ] A resident of Canada must actively apply for the CCB. The application form for the CCB or, as it was previously named the CCTB, is form RC66.

In the application form, the claimant must state whether they (and their spouse or common-law partner) are citizens of Canada. If they are not citizens, or if they recently became new residents of Canada or returned as residents to Canada in the last two years, then they must complete another form: Status in Canada/Statement of Income form RC66SCl-L. [ 14 ] In processing an application for the CCTB or the CCB, the CRA does not ask the claimant why they came to Canada. D. Ms. Yao

a) Ms. Yao’s background [ 15 ] Ms. Yao married in Canada in August 2014. She and her husband were citizens of the People’s Republic of China ( " “China” " ). Their son was born in Toronto in 2015. Therefore, the son is a Canadian citizen, while neither Ms. Yao nor her husband are or were. [ 16 ] While residing with Ms. Yao, the husband was issued temporary work permits by Immigration, Refugees and Citizenship Canada ( " “IRCC” " ). [ 17 ] Ms. Yao entered Canada on foot near Vancouver, British Columbia in August 2012.

She did not hold a permanent resident visa as required under the Immigration and Refugee Protection Regulations in order to establish permanent resident status. She claimed refugee protection under

section 96 and subsection 97(1) of the IRPA. [ 18 ] On March 20, 2014, the Refugee Protection Division of the IRB determined that Ms. Yao was not a Convention refugee or a person in need of protection .

b) Ms. Yao’s refugee claim history [ 19 ] On April 1, 2014, Ms. Yao appealed the Refugee Protection Division decision to the Refugee Appeal Division of the IRB. Later that month, the Refugee Appeal Division dismissed her appeal. In response, Ms. Yao filed an application for leave and judicial review of the decision, logically to stave off deportation. [ 20 ] On March 12, 2015, the Federal Court granted Ms. Yao’s application for leave and judicial review of the Refugee Protection Division decision.

In September of 2015, the Federal Court granted the application for leave and judicial review of the Refugee Protection Division decision. On September 22, 2015, Ms. Yao was issued a new work permit by IRCC. She was issued subsequent temporary work permits in seriatim for the period from the original work permit in 2015 until she was declared a refugee on September 4, 2019.

c) Ms. Yao’s CCTB (now CCB) claim history [ 21 ] Ms. Yao applied for the CCTB, in respect of her son, retroactive to March 30, 2015. [ 22 ] On August 20, 2015, the Minister of National Revenue (the " “Minister” " ) issued to Ms. Yao a Notice of Determination, which identified the amount to which Ms. Yao was entitled in respect of the CCTB. In February 2016, the Minister terminated payments to Ms. Yao under the CCTB. On July 1, 2016, the CCTB was replaced with the CCB. [ 23 ] On August 19, 2016, the Minister redetermined Ms. Yao’s entitlement and requested that Ms.

Yao repay overpayments of the CCB totalling $1,199.21 . In June 2017, Ms. Yao served a Notice of Objection and a request for an extension of time to file her Notice of Objection. In July 2017, the CRA granted Ms. Yao’s application for an extension of time to file her Notice of Objection, and requested documentation supporting her eligibility for the CCB. After Ms. Yao responded, the Minister issued a Notice of Confirmation, confirming the redetermination of Ms. Yao’s eligibility and effectively denying her the CCB on the basis of her status as a refugee claimant.

d) Ms. Yao’s testimony concerning her challenges [ 24 ] Ms. Yao, like most refugee claimants, has had considerable financial challenges, arriving virtually penniless in a new country and unable to speak either official language. She attempted to reduce the language barrier by taking English lessons when she arrived in 2012. Although irrelevant to her appeal, her process for entry into Canada was unorthodox and suspect, and involved some unscrupulous actors. She paid some $20,000 to $30,000 Canadian to an illicit Chinese immigration " “consultant” " , commonly known as a " “snakehead.” " [ 25 ] In 2014, Ms.

Yao married. She and her husband separated sometime in 2017 or so. During that period, the family supported itself through her husband’s intermittent income of $2,000 to $3,000 per month. She herself was employed selling skincare products. Her income was $1,000 per month or less. More recently, her income has become more stable. [ 26 ] During 2015 and 2016, Ms. Yao was originally paid the CCB (then the CCTB). The money assisted her with necessities. After the benefit was terminated, her testimony was that she resorted to second-hand stores, borrowed items and community help. During that

period, she was sad, anxious and without much hope. By contrast, now that the benefit has been restored, swimming lessons, marital arts lessons, piano lessons and golf lessons are within reach financially. Healthcare was always accessible. [ 27 ] Her accommodation has changed as well. In 2014, she lived in the basement of a semi-detached house. In 2016, she moved to a large condominium. In this location, she had security, parking and close proximity (less than a block) to her son’s school. In 2017, she again relocated to a two-storey house with a basement, double-car garage and a backyard. She lives there presently. E. Ms. Zhang

a) Ms. Zhang’s background [ 28 ] Ms. Zhang and her children’s pathway to refugee status is slightly more straightforward. The period in issue for Ms. Zhang is March 2018 to May 2019. During that time, she was a refugee claimant, and like all refugee claimants, under a conditional departure order. [ 29 ] Ms. Zhang’s children were essentially in the same position as Ms. Zhang to the extent that they had no different " “immigration status” " than their mother. Her children were both born in China, her daughter in 2010 and her son in 2012. [ 30 ] Ms.

Zhang divorced her husband, himself a Chinese citizen who never resided in Canada, in early 2018. At that time, Ms. Zhang was granted sole custody of her children by court order.

b) Ms. Zhang’s refugee claim history [ 31 ] From April 2013 to October 2014, Ms. Zhang and her children were in Canada by virtue of Ms. Zhang’s study permit and V-1 visitor permits. Ms. Zhang and her children were all back in China by August 2014, prior to the expiration of the permits. [ 32 ] In May 2017, Ms. Zhang claimed refugee protection under the IRPA. She and her children received a refugee claimant document and qualified for interim federal healthcare.

A conditional departure order was also issued. [ 33 ] From summer 2017 to October 2020, various work and study permits were issued, expired and/or were extended. Finally, in December of 2020, Ms. Zhang was issued a study permit, valid until August 31, 2023. It stated on its face, like all the others, that it " “does not confer temporary resident status” " .

c) Ms. Zhang’s CCB claim history [ 34 ] Ms. Zhang applied for the CCB in respect of her children in May 2017. On July 20, 2017, the Minister issued to Ms. Zhang a Notice of Determination, stating that she was not entitled to the CCB for the 2016 base year. [ 35 ] This Notice of Determination is not under appeal. [ 36 ] Ms. Zhang again applied for the CCB in respect of her children by application dated May 4, 2018. On July 20, 2018, the Minister issued a Notice of Determination, notifying Ms. Zhang that she was entitled to the CCB for the 2016 base year. In 2018, a similar notice advised Ms.

Zhang that she qualified for the 2017 base year. [ 37 ] On September 20, 2019, the Minister changed her mind and notified Ms. Zhang that she was not entitled to the CCB for the 2016 and 2017 base years. On November 13, 2019, Ms. Zhang served a Notice of Objection in respect of the notices of determination disentitling her to the CCB. The Minister subsequently confirmed the denial of the CCB for the 2016 and 2017 base taxation years.

d) Ms. Zhang’s testimony concerning her challenges [ 38 ] The purpose of Ms. Zhang’s second entry into Canada in August 2016 with her two children was twofold. Firstly, she wanted to study in Canada from August to December 2016. Secondly, and more existentially, she was fleeing an intolerable domestic arrangement, greater details of which are constrained by this Court’s own confidentiality order. [ 39 ] From 2017 until 2020, Ms. Zhang and her children lived in a secure living arrangement.

Ultimately, the Ontario Superior Court of Justice awarded her sole custody under various protective court orders. [ 40 ] During the years from 2018 to 2020, Ms. Zhang pursued her post-graduate studies and further continued her professional education in the fall of 2020. [ 41 ] Her financial situation during these years was precarious. She used supports from parents, her community, food banks and churches to survive financially. She described her situation as " “very tight” " financially. She was an excellent student and received numerous bursaries and awards.

The CCB moneys, when received for an interim period, were used for better clothing, groceries such as fresh fruits and vegetables and, of particular pride, extracurricular activities for her children. [ 42 ] Ultimately, after the relevant periods ended, in 2019 and 2020, the Refugee Protection Division of the IRB determined that Ms. Yao, Ms. Zhang and Ms. Zhang’s children were Convention refugees. [ 43 ] This meant that refugee protection was conferred on them and they became protected persons within the meaning of the IRPA. This also meant that Ms. Yao, Ms. Zhang and Ms.

Zhang’s children became eligible individuals for the purposes of the CCB, under subparagraph 122.6 (e)(iii) of the ITA .

III. PART A – CCB ELIGIBILITY [ 44 ] At a high level, the first specific issue in these appeals is: Did Ms. Yao and/or Ms. Zhang, as refugee claimants, qualify as eligible individuals within the meaning of subparagraph 122.6 (

e) of the ITA ? A. Meaning of Temporary Resident [ 45 ] The determination of who qualifies for the CCB is governed by the ITA , the IRPA, and the Regulations thereunder. The ITA defines " “eligible individual” " to include a " “temporary resident within the meaning of the Immigration and Refugee Protection Act ”. " However, " “temporary resident” " is not explicitly defined in the IRPA. [ 46 ] The Appellants, as refugee claimants, argue that they fall within the meaning of " “temporary resident” " .

Accordingly, the issue before this Court is whether, under subparagraph 122.6 (e)(ii) of the ITA , a refugee claimant is a temporary resident within the meaning of the IRPA and is therefore eligible for the CCB.

a) Excerpt from the ITA [ 47 ] Eligible individuals are entitled to apply for the CCB pursuant to

section 122.6 of the ITA . Paragraph 122.6 (

e) defines " “eligible individual” " as follows: eligible individual in respect of a qualified dependent at any time means a person who at that time … (

e) is, or whose cohabiting spouse or common-law partner is, a Canadian citizen or a person who (

i) is a permanent resident within the meaning of subsection 2(1) of the Immigration and Refugee Protection Act , (ii) is a temporary resident within the meaning of the Immigration and Refugee Protection Act , who was resident in Canada throughout the 18 month period preceding that time, (iii) is a protected person within the meaning of the Immigration and Refugee Protection Act , (iv) was determined before that time to be a member of a class defined in the Humanitarian Designated Classes Regulations made under the Immigration Act , or (

v) is an Indian within the meaning of the Indian Act , [Emphasis added.]

b) Excerpts from the IRPA [ 48 ] The IRPA does not define " “temporary resident”. " Instead, the IRPA describes the process and means by which one becomes a temporary resident. [ 49 ]

Section 22 authorizes an immigration officer ( " “IO” " ) to determine whether a foreign national qualifies to be a temporary resident. Temporary resident 22

(1) A foreign national becomes a temporary resident if an officer is satisfied that the foreign national has applied for that status, has met the obligations set out in paragraph 20(1)(b), is not inadmissible and is not the subject of a declaration made under subsection 22.1(1). Dual intent

(2) An intention by a foreign national to become a permanent resident does not preclude them from becoming a temporary resident if the officer is satisfied that they will leave Canada by the end of the period authorized for their stay. [ 50 ]

Section 24 provides that an IO may grant a temporary resident permit. Temporary resident permit 24

(1) A foreign national who, in the opinion of an officer, is inadmissible or does not meet the requirements of this Act becomes a temporary resident if an officer is of the opinion that it is justified in the circumstances and issues a temporary resident permit, which may be cancelled at any time. Exception

(2) A foreign national referred to in subsection (1) to whom an officer issues a temporary resident permit outside Canada does not become a temporary resident until they have been examined upon arrival in Canada.

Instructions of Minister

(3) In applying subsection (1), the officer shall act in accordance with any instructions that the Minister may make. Restriction — pending application for protection

(3.1) A foreign national whose claim for refugee protection has been determined to be ineligible to be referred to the Refugee Protection Division may not request a temporary resident permit if they have made an application for protection to the Minister that is pending. Restriction

(4) A foreign national whose claim for refugee protection has not been allowed may not request a temporary resident permit if less than 12 months have passed since (

a) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division, in the case where no appeal was made and no application was made to the Federal Court for leave to commence an application for judicial review; or (

b) in any other case, the latest of (

i) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Protection Division or, if there was more than one such rejection or determination, the day on which the last one occurred, (ii) the day on which their claim was rejected or determined to be withdrawn or abandoned by the Refugee Appeal Division or, if there was more than one such rejection or determination, the day on which the last one occurred, and (iii) the day on which the Federal Court refused their application for leave to commence an application for judicial review, or denied their application for judicial review, with respect to their claim. Restriction — designated foreign national

(5) A designated foreign national may not request a temporary resident permit (

a) if they have made a claim for refugee protection but have not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; (

b) if they have made an application for protection, until five years after the day on which a final determination in respect of the application is made; or (

c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national. Suspension of request

(6) The processing of a request for a temporary resident permit of a foreign national who, after the request is made, becomes a designated foreign national is suspended (

a) if the foreign national has made a claim for refugee protection but has not made an application for protection, until five years after the day on which a final determination in respect of the claim is made; (

b) if the foreign national has made an application for protection, until five years after the day on which a final determination in respect of the application is made; or (

c) in any other case, until five years after the day on which the foreign national becomes a designated foreign national. Refusal to consider request

(7) The officer may refuse to consider a request for a temporary resident permit if (

a) the designated foreign national fails, without reasonable excuse, to comply with any condition imposed on them under subsection 58(4) or

section 58.1 or any requirement imposed on them under

section 98.1; and

b) less than 12 months have passed since the end of the applicable period referred to in subsection (5) or (6). [ 51 ] Subsection 46(1.1) provides that automatic conferral of temporary resident status occurs after renunciation of permanent resident status. Effect of renunciation 46(1.1) A person who loses their permanent resident status under paragraph (1)(

e) becomes a temporary resident for a period of six months unless they make their application to renounce their permanent resident status at a port of entry or are not physically present in Canada on the day on which their application is approved. [ 52 ] Certain protected refugees are granted temporary resident status under subsection 95(1).

Conferral of refugee protection 95

(1) Refugee protection is conferred on a person when (

a) the person has been determined to be a Convention refugee or a person in similar circumstances under a visa application and becomes a permanent resident under the visa or a temporary resident under a temporary resident permit for protection reasons; (

b) the Board determines the person to be a Convention refugee or a person in need of protection; or (

c) except in the case of a person described in subsection 112(3), the Minister allows an application for protection. [ 53 ] This list is exhaustive and is not open and flexible. Notably, temporary resident status requires an IO or Board decision.

c) Jurisprudence 1. Leading Authority [ 54 ] Almadhoun v. Canada [7] is the leading case resolving whether a refugee claimant is a temporary resident within the meaning of the IRPA . In Almadhoun , the Federal Court of Appeal (the " “FCA” " ) agreed with the Tax Court that a refugee claimant is not a temporary resident and is therefore not an eligible individual for the purposes of

section 122.6 of the ITA . The FCA, at paragraphs 17 and 18, held: [17] … There is absolutely nothing in the legislation to support the appellant’s assertion that

section 122.6 of the Act necessarily includes a person whose application for status as a protected person is pending, and the appellant was unable to provide any case law in support of her contention. Contrary to Ms. Almadhoun’s argument, there is no gap in the legislation; Parliament made a conscious policy choice as to the groups of persons on whom social benefits would be conferred.

It is not for this Court to second-guess that deliberate choice … [18] The same reasoning applies in response to the appellant’s second argument, namely that she should be considered at the very least a “temporary resident” with the meaning of the IRPA .

The IRPA provides a process for the determination of temporary residency, which is not an open and flexible category. … [ 55 ] The Appellants correctly recognize that in order to depart from vertical precedent, including decisions of the FCA, it is not enough to be manifestly wrong. [8] The appeal must raise a new legal issue, or present new evidence that will " “fundamentally shift how jurists understand the legal question at issue.” " [9] The question at issue is admittedly a question of law, so new evidence cannot help.

" [ " " 56 " " ] " Where the same legal issue before the Tax Court is re-litigated, Almadhoun is binding, except in rare circumstances. [10] The Appellants cite the Supreme Court of Canada case Bedford [11] to assert that raising a new " “critical statutory provision” " is just such a sufficiently rare circumstance that applies in this case. [12] In Almadhoun , the Court did not analyze the relevant " IRPA " provisions, the Convention on the Rights of the Child [13] or statements of legislative intent. Further, Almadhoun was limited to on a strict textual

interpretation of " “eligible individual”. " [ 57 ] The Respondent argues that because the issue in Almadhoun is the same issue before this Court, Almadhoun is binding on this Court. [14] Accordingly, a refugee claimant is not included in the meaning of temporary resident under the IRPA and is therefore not eligible for the CCB. Analysis [ 58 ] Almadhoun is prima facie binding on this Court. The FCA specifically considered subparagraph 122.6 (e) (ii) of the ITA , the same statutory provision raised in this appeal.

This leads to the same issue being squarely before the Court: whether, under subparagraph 112.6 (e)(ii) of the ITA , a refugee claimant is a " “temporary resident” " within the meaning of the IRPA. [ 59 ] The Appellants’ assertion that raising a new " “critical statutory provision” " allows a court to reconsider a settled issue is not founded in jurisprudence.

It is partially correct that the Tax Court can depart from vertical precedent " “if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate.” " [15] However, Bedford was about Charter provisions, not about " “critical provisions” " from legislation in general. [ 60 ] To expand upon the Appellants’ quotation from Bedford , " “a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue.” " [16] Raising a new Charter challenge is more than just highlighting a different statutory provision; it raises a new independent claim.

Further, the " “significant development in the law” " in Bedford allowing precedent to be re-argued was the development of jurisprudence on the " “principles of fundamental justice” " which significantly changed the s. 7 analysis. [ 61 ] Identifying other provisions of the IRPA does not create new issues in the way that bringing a claim under the Charter or under a different Charter provision does. Further, the CRC and all documents regarding legislative intent were available at the time Almadhoun was heard, so no significant change in the law is apparent.

Although the FCA’s discussion on the " “temporary resident” " provision is short, that alone is not enough to overturn the binding precedent on the basis of new legislative facts or legislative amendments, when factually such terrain was identical when viewed by the FCA. [ 62 ] To overturn vertical precedent, there must be a new issue raised, or a change in the law or circumstances that " “fundamentally shifts

the parameters of the debate.” " [17] The Appellants assert that the FCA incorrectly interpreted the legislation because it did not look at other materials such as other sections of the IRPA, the CRC, and other documents indicating legislative intent. [18] This is insufficient to overturn binding precedent. As a result, Almadhoun is binding on this Court.

d) Interpretation of the Statutes [ 63 ] The question of whether refugee claimants are " “temporary residents” " and therefore " “eligible individuals” " under s. 122.6 can only be reconsidered if Almadhoun is not binding on this Court because the Court is prepared to distinguish it. For completeness, and despite the binding nature of Almadhoun , the Court pursues this issue. [ 64 ] This is an issue of statutory

interpretation. The Appellants argue that the

interpretation should look beyond the text of the provision. The Court should take a contextual and purposive approach to resolve ambiguity. [19] The Appellants also assert that further ambiguities should be resolved in favour of the taxpayer. [20] Benefit schemes should be given a large and liberal

interpretation, and such an approach has been applied to the CCB regime in the past. [21] [ 65 ] In Québec (Communauté urbaine) v. Corp Notre-Dame de Bon-Secours , [22] the Supreme Court set out the principles which are to govern

interpretation of tax legislation. The Court found that the

interpretation of tax legislation should follow the ordinary rules of

interpretation and that the choice between a strict or liberal reading of the text must not be guided by presumptions favourable to the state or the taxpayer, but by reference to the goal which underlies the provision. [23] [ 66 ] The ordinary rule of statutory

interpretation is that " “[t]he words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.” " [24] The first step is to examine the text of the provision to determine its plain or ordinary meaning. However, the true meaning of the words can only be determined contextually by considering other indicators of legislative meaning, including context, purpose, and relevant legal norms. [25] 1. Immigration vs.

Tax Issue [ 67 ] Before discussing the text, context, and purpose, it is necessary to resolve the extent to which the Court should look at the IRPA and the functioning of the immigration regime to interpret this ITA provision. [ 68 ] The Appellants argue that it is incorrect to look at the IRPA to resolve ambiguity about the ITA . The

interpretation should focus on the CCB regime as this is not an immigration law case. [26] The Appellants cite the Alberta Court of Appeal ( " “ABCA” " ) decision Alberta v. ENMAX [27] as authority that the focus should be on the purpose and context of the ITA –specifically the CCB regime– and not the IRPA and its immigration regime. [28] [ 69 ] ENMAX focused on a provision of Alberta’s provincial energy regulation regime (the " “primary regime” " ).

This provision required a calculation of " “an amount equal to the amount of tax” " that an entity would be liable to pay under the ITA (the " “secondary regime” " ). [29] To calculate that amount payable, the trial judge " “effectively determined that anything outside the ITA was irrelevant”.

" [30] The ABCA instead used the purpose and context informing the primary regime, resulting in a calculation that was different than if it had been done for income tax purposes instead. [ 70 ] The Respondent asserts that the phrase " “within the meaning of the Immigration and Refugee Protection Act ” " invites and directs the Court to look at the entirety of the IRPA to determine the meaning of " “temporary resident”. " Further, Parliament has the right to determine immigration policy.

Assigning the term " “temporary resident” " a meaning other than what it means in the IRPA will undermine that right and affect Canada’s immigration policy while ingoing the use of such definition. [ 71 ] In ENMAX , the ABCA did not ignore the secondary regime. Rather, the Court looked at the context and purpose of the primary regime and found that the ITA calculation would have contravened that purpose.

The purpose and context of the secondary regime need not be ignored, it just ought not to undermine the primary regime’s purpose. [ 72 ] By analogy in these appeals, the CCB provisions of the ITA create the primary regime, and the IRPA is the secondary regime.

To determine the meaning of " “temporary resident” " , the overall purpose and context of the CCB cannot be ignored and the IRPA cannot be applied in a vacuum. [ 73 ] Ultimately, the process is such that Parliament directs the reader from the primary regime to another regime, but only so far as it approaches the issue of defining " “temporary resident” " , a concept more proximate to immigration law in this context than tax law. This ostensibly seeks consistency between legislation of the same law-making body and not the reverse. 2.

Text [ 74 ] The Appellants argue that the meaning of " “temporary resident” " is ambiguous because, although

section 122.6 refers to a temporary resident " “within the meaning of the Immigration and Refugee Protection Act ,” " the IRPA does not contain a definition of " “temporary resident”.

" [31] While the IRPA sets out multiple methods of becoming a temporary resident, there is no indication that this is an exhaustive list. [32] The Court should not apply expressio unius (implied exclusion) to treat this as an exhaustive list. [33] Further, the IRPA itself has some confusing and inconsistent provisions regarding temporary residents. [34] [ 75 ] The Respondent argues that the meaning of " “temporary resident” " is not ambiguous. [35] The IRPA sets out a finite number of ways to acquire temporary resident status. [36] All these methods require a determination by an IO. [37] The IRPA does not contemplate that refugee claimants acquire temporary resident status; refugee claims are not handled by IOs. [38] While temporary residents, permanent residents, and refugees are able to remain in Canada for a specific period, refugee claimants are subject to a conditional removal order until their claim is heard and a determination is made. [39]

[ 76 ] It is true that there is no singularly identifiable definition of " “temporary resident” " in the IRPA or an explicitly exhaustive list of methods to receive or achieve temporary resident status. This likely relates to the total absence of refugee claimant designation status from the IRPA . [ 77 ] The Court finds consistency in the legislative approach. Refugee claimants pursue an entirely different process for a status which is not determined by IOs.

The IRPA’s notation on relevant documents that refugee claimants do not receive temporary resident status through work and student permits also supports this conclusion. This is consistent with the decision in Almadhoun when expressed as follows: [18] … The IRPA provides a process for the determination of temporary residency, which is not an open and flexible category.

In the appellant’s submission however, she met the conditions required to be considered as a “temporary resident” as a result of having been issued a Refugee Protection Claimant Document. [19] The problem with this argument is that the IRPA temporary resident regime explicitly requires the conferral of temporary residency by an immigration officer. … [21] … there is no such thing as a de facto temporary resident status. … [40] [ 78 ] Lastly, the ITA does not reference a temporary resident " “as defined in the Immigration and Refugee Protection Act ,” " but rather a temporary resident " “within the meaning of the Immigration and Refugee Protection Act .” " In turn, this legislatively directs that the meaning is discernible in the legislation. [ 79 ] As a result, the Court finds that the plain and ordinary

interpretation of the text of the ITA is that the meaning of " “temporary resident” " status is found within the IRPA. Although the IRPA does not explicitly define temporary resident, it is clear from a plain reading that an individual can only become a temporary resident when an IO confers that status according to the legislation. Since the legislation does not provide for IOs or others to confer temporary resident status on refugee claimants, refugee claimants are not temporary residents within the meaning of the IRPA. 3.

Context and Purpose [ 80 ] Given the distinction between the domestic legislative history and the treaty obligation under the CRC, each will be analyzed separately. Legislative History [ 81 ] The Appellants claim that various government documents and speeches show that the CCB was created with the intention to help families, especially those of low income, with the cost of raising their children. This is uncontroverted. Further, the Appellants argue that Parliament did not intend to exclude refugee claimants. Rather, Parliament intended to include everyone who is legally entitled to stay in Canada.

Refugee claimants are legally entitled to stay in Canada. [41] [ 82 ] The Respondent argues that Parliament intended to leave out refugee claimants from the CCB program. Refugees, per se , were not initially included in the legislation, but amendments incrementally included refugees and other people in " “refugee-like” " situations. [42] However, refugee claimants were never included. Parliament had ample time to include refugee claimants if it so desired and it did not. [43] [ 83 ] Parliament’s intention is likely revealed by its approach.

The legislative history shows a general goal of helping parents with the cost of raising their children and alleviating child poverty. It is clear that Parliament intentionally amended eligibility for the CCB to include certain of those with varying immigration status. There is no mention of refugee claimants, despite the eligibility being specifically extended to refugees (post immigration assessment). It is possible that this was an oversight but, on balance, it is more likely that refugee claimants were intentionally excluded. The text of the provision further supports this.

If the inclusion of refugee claimants was intended, it would have been more simple to state that an " “eligible individual” " is anyone who otherwise qualifies and is legally domiciled or " “entitled to stay” " in Canada, rather than to use the chosen, but more exclusive, and perhaps more cumbersome categories of individuals listed in subparagraphs (e)(

i) to (e)(

v) of s. 122.6. International obligation and the CRC [ 84 ] The Appellants cite the 1992 budget speech, which explicitly linked the CCB to the CRC. [44] They argue that legislation is presumed to comply with Canada’s international obligations. As a result, the Intervenor also stressed that the CRC creates an obligation for Canada to ensure that children have access to social security and social insurance sufficient to meet their developmental needs.

Each child, regardless of their own nationality or the nationality of their parents, should be granted these rights. [45] [ 85 ] The Respondent claims that international obligations cannot override clear statutory language. [46] " [ " " 86 " " ] " There is a presumption that legislation conforms to international law.

This means that " “courts will strive to avoid construction of domestic law pursuant to which the state would be in violation of its international obligations, unless the wording of the statute clearly compels that result.” " [47] " " [ 87 ] Canada has committed to protecting all children, including children of refugee claimants, by signing the CRC. However, there is little ambiguity upon which one can conclude that Parliament inadvertently misaligned its specific legislative enactment with its treaty obligations.

The wording of the statute clearly compels the result that refugee claimants are excluded from the CCB because the legislation does not define them as persons entitled to unconditionally remain in Canada.

e) Conclusion to Part A [ 88 ] There are no new legal issues raised. There has been no significant development in the law that was not otherwise previously before the FCA; Almadhoun is binding precedent on this Court. Even if Almadhoun is not binding, the constructive definition of " “temporary resident” " is not ambiguous. Refugee claimants are not and were not intended to be temporary residents " “within the meaning of” " the IRPA. [ 89 ] The legislative history points to an overall goal of alleviating child poverty and assisting parents to pay for necessities.

However, Parliament may set specific eligibility criteria for the CCB, including those grounded in degree, length and certainty of residency. Such foundational logic embeds common sense at its root. Even those unfamiliar with the text, context, and purpose of the legislation grasp why it is logically so. The wording of the paragraph and the multitude of amendments to the eligibility criteria suggest that Parliament was quite deliberate; it did not intend to allow anyone without a defined legal status and established nexus to Canada to receive the CCB, regardless of its obligations under the CRC. IV.

PART B – THE CONSTITUTIONAL CHALLENGE A. Sections 1 and 15 of the Charter Have the Charter rights of Ms. Yao or Ms. Zhang under s. 7 or subsection 15(1) been violated and, if such a violation has occurred, is such a violation not justified under s. 1 of the Charter ? [ 90 ] The excerpts from the Charter are relatively short; they are, however, ladened with nuance and covered by extensive legal

interpretation. [ 91 ]

Section 7 of the Charter provides: 7. 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. [ 92 ]

Section 15 of the Charter provides: 15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. (2) Subsection (1) does not preclude any law, program or activity that has as its object the amelioration of conditions of disadvantaged individuals or groups including those that are disadvantaged because of race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Preliminary Issue re: Notice of Constitutional Question [ 93 ] During the portion of the hearing in October 2022, an issue arose among counsel and was raised with the Court. It concerned the sufficiency of the original notice of constitutional question sent to the provincial Attorneys-General. Specifically, the original notice referenced whether the “immigration status” as an eligibility requirement in the ITA violated the

section 7 and 15 rights of the Appellants and their children. Counsel noted that submissions and argument up to that point had narrowed the status further to that of " “refugee claimant status” " . [ 94 ] In order to alert the provincial Attorneys-General, a clarification letter was sent to each describing the more refined status, a

summary of where the appeals stood and an invitation to each Minister of the Crown to advise the Court and counsel should any now wish to make submissions concerning the sub-category of immigration status: refugee claimant. None accepted the offer. B.

Summary of Expert Evidence [ 95 ] The background and certified area of expertise for each expert who testified before the Court are as follows: For the Appellants: Expert Witness Education and/or Background Certified Area of Expertise Mr. John Stapleton BA and MA in Sociology Expert in the historical context and development of federal and provincial income security benefits for children and families with children in Canada Dr. Grace-Edward Galabuzi MA and PhD in Political Science Expert in race and gender-based income inequality and public administration in poverty reduction Dr.

Leslie Roos PhD in Psychology Expert on the psychological effects of poverty and stress on children’s mental, neurological and endocrine health and development

Dr. Luin Goldring MS and PhD in Sociology Expert in the subject of the sociological experience of newcomers to Canada, in particular those with precarious legal status Dr. Leslie Roos PhD in Psychology Expert on the psychological effects of poverty and stress on children’s mental, neurological and endocrine health and development Expert Witness Education and/or Background Certified Area of Expertise For the Respondent: Expert Witness Education and/or Background Certified Area of Expertise Dr.

Andrew Sharpe Founder of the Centre for the Study of Living Standards Expert in economics and economic statistics. [ 96 ] Clear from all expert testimony was that each expert for the Appellants felt strongly that the exclusion of refugee claimants from the CCB was, at the very least, a regrettable oversight, whether advertent or inadvertent. To that extent, they were biased. In today’s political and media-dominated climate, perhaps only within a court’s sterile environment, if even then, can those involved in social benefits policy not have a telegraphed viewpoint.

In any event, this was identified for and by the Court several times. It is not a question of forgetting or ignoring any such bias, but properly characterizing it: a strong preference for policy change in their field. Consequentially, calibrating the weight of the reports, and not excluding the witnesses, was the chosen path of the Court. [ 97 ] From the evidence, no expert witness was immune to having used partial, dated or parsed data. More specific references are made subsequently throughout these reasons.

Repeated and recurring comments, views and opinions marched along with observations regarding the CCB, immigration to Canada and the refugee and claimant process. To be specific, the Appellants’ experts made such statements. For example, Dr. Galabuzi used outdated census data; cut and pasted a previous affidavit; and selected more general groups where more specific sub-category data were available. Dr. Goldring rarely referred to refugee claimants; understated available government programs; and failed to analyze data contrasting groups by sex. [ 98 ] Dr.

Roos used US-based research without clarifying that source in her evidence; was incorrect about access of refugee claimants to healthcare, generally; and utilized outdated data. Mr. Stapleton’s testimony as a " “social benefit designer” " was anecdotal; untied to the underlying legislation; and provided evidence on economics, an area in which he was not qualified. [ 99 ] The Respondent’s expert witness also unintentionally salted the numbers; Dr.

Sharpe cut and pasted excerpts from other reports, and he asked and answered questions not otherwise posed. [ 100 ] Despite these lapses of reliability, from such expert testimony, the following were the balanced, weighted and proportional conclusions extracted by the Court: (

a) the qualifications for the CCB and the previous iterations of the benefit have consistently included both a prerequisite durational and connective tenure; (

b) refugee claimants are desperately and markedly poor when they enter Canada; (

c) there is an income gap between immigrants and longstanding residents in Canada; however, the income gap closes after entry and narrows as time spent living and working in Canada by immigrants passes; (

d) the majority of refugee claimants and immigrants in Canada are from the Global South and are racialized persons or visible minorities; [48] (

e) there are no precise data on refugee claimants per se , and so proxies of those with precarious legal status were used to infer conclusions which it was advanced such unavailable data might otherwise reveal; (

f) there are multiple benefit programs for refugee claimants in Canada from all levels of government; these programs are sometimes duplicative and work at cross-purposes; (

g) poverty impacts children negatively in social, developmental and ultimate outcomes; (

h) direct cash transfer benefits, such as the CCB, help parents and children because they constitute a consistent or predictable financial support; (

i) refugees who are women have measurably lower income levels than others, including male refugees; and, (

j) women refugee claimants are enumerated as parents more frequently than male refugee claimants. [ 101 ] None of these conclusions are particularly surprising. Many such conclusions, if they had not been adduced in testimony, could simply be logically and knowingly observed through judicial notice. While overall the quality of expert testimony was less than stellar and not infrequently unrealiable, collectively, the factual

summary drawn above provided the basis for conducting the Charter analysis. C.

Section 7 [ 102 ]

Section 7 protects fundamental personal rights of survival and existence: life, liberty and security of the person. The rights broadly protect against state or quasi-state action, or arguably controllable omission, which depraves the subject of those three rights, except

where deprivation of the established right aligns with fundamental justice. [ 103 ] The Appellants argue that paragraph 122.6(e), which operates to exclude the Appellants from the definition of " “eligible individual” " and thus disentitles them from the CCB, deprives them and their minor children of their right to security of the person in a way that is not in accordance with the principles of fundamental justice. [49] The Appellants do not argue that their rights to life or liberty have been deprived. [ 104 ] The Respondent claims that the Appellants and their children are not deprived of their right to security of the person under s. 7 and that even if a deprivation of the Appellants’ and their children’s s. 7 rights is established, this was in accordance with the principles of fundamental justice. [50] [ 105 ] To establish that there was a violation of s. 7, the Appellants must first establish that their interest falls within the ambit of s. 7.

If it does, the Appellants then must show that the impugned law interferes with, or deprives them of, their life, liberty, or security of the person and that the deprivation is not in accordance with the principles of fundamental justice. [51] [ 106 ] Accordingly, there are three elements to resolve in this part: (

i) whether the legislation affects an interest protected by the right to security of the person within the meaning of s. 7; (ii) whether excluding refugee claimants from the CCB constitutes a deprivation of that right by the state; and (iii) if the first two elements are established, whether this deprivation was in accordance with the principles of fundamental justice.

a) Does the legislation affect an interest protected by the right to security of the person? [ 107 ] The first step is to determine whether the right contended for –in this case, refugee claimants’ right to the CCB– garners. 7 protection. [52] This requires consideration of the content of the right to security of the person and the nature of the interests protected by s. 7. [53] 1.

Is the administration of justice implicated? [ 108 ] In Gosselin , Chief Justice McLachlin explained that the jurisprudence up to that time suggested that only certain kinds of deprivation of life, liberty and security of the person are protected by s. 7: those attributable to state action implicating the administration of justice. [54] The " “administration of justice” " phrase refers to " “the state’s conduct in the course of enforcing and securing compliance with the law”.

" [55] [ 109 ] The administration of justice can be implicated in a variety of circumstances: criminal processes, human rights processes, parental rights in relation to state-imposed medical treatment, parental rights in the custody process, and liberty to refuse state-imposed addiction treatment. [56] [ 110 ] The administration of justice is not patently or readily implicated in these appeals. The Chief Justice also held that it was not implicated in Gosselin . The issue in Gosselin was whether the right to security of the person included a particular level of governmental social assistance to meet basic needs.

That is similar to the question in these appeals. [ 111 ] However, the Chief Justice disagreed that s. 7 protection must always be narrowly confined to state action implicating the administration of justice. She suggested that s. 7 could possibly apply to rights or interests wholly unconnected to the administration of justice.

Accordingly, the extent to which and the situation where s. 7 applies outside the context of the administration of justice remains unsettled, or more precisely, until this time unattained. [57] [ 112 ] Further, the Chief Justice said that it was not necessary to provide an exhaustive definition of the administration of justice in Gosselin by stating that " “[t]he issue here is not whether the administration of justice is implicated — plainly it is not — but whether the Court ought to apply s. 7 despite this fact.” " [58] [ 113 ] Similarly, the issue in these appeals is whether the Court ought to apply s. 7 despite the fact that the administration of justice is not implicated.

Uncertainty arises in this respect because the Appellants effectively ask this Court to impose a positive obligation on the state to provide a social benefit. Whether the Charter protects economic rights, or more specifically whether s. 7 protects a basic minimum of social assistance, has been the subject of considerable debate, and is described by proponents and legislative bodies as the " “social charter” " . [59] 2. Can s. 7 protection place a positive obligation on the state? [ 114 ] The Appellants say that they do not seek that a positive obligation be recognized pursuant to s. 7.

However, the argument does just that; imposing a positive obligation is imposed on the state to provide a benefit. If exclusion from the CCB scheme is a deprivation, the right to be included is the implicit right that was denied. That is, if omission deprives an individual from a right, then inclusion confers it.

As a result, the Appellants request that the Court should recognize presently that s. 7 can place positive obligations on the state; the Supreme Court has left the door open, and a fulsome evidentiary record is at the threshold in these appeals. [ 115 ] Gosselin , did not resolve whether s. 7 could be read to encompass economic rights.

However, the Chief Justice commented that even if s. 7 could be read to protect economic rights, s. 7 has been interpreted as a restriction of the state’s ability to deprive people of rights, not the placement of a positive obligation on the state. [60] However, the Chief Justice left the door open for a positive obligation of the state to sustain security of the person informed by special circumstances in the future. [61] [ 116 ] The Appellants argue that Chaoulli v.

Quebec (Attorney General) [62] is an example of a case where the Supreme Court effectively mandated a positive right. [63] The Supreme Court unanimously found that a Quebec law prohibiting insurance for private medical care deprived the claimants of their security of the person. The Court found that although the Charter does not provide a freestanding right to

healthcare, where the government puts a healthcare scheme in place, the scheme must comply with the Charter . [64] The Appellants argue that this was akin to a positive benefit and analogous to the case at bar: the government put in place a scheme designed to provide benefits intended to alleviate child poverty, and the scheme must comply with the Charter by not withholding these benefits from the Appellants in violation of the s. 7 or analogous rights. [65] [ 117 ] The Appellants’ argument is flawed because the situations are not analogous.

In Chaoulli , the government imposed an exclusive healthcare scheme on all citizens of the province, which caused delays in healthcare treatment, resulting in adverse physical and psychological consequences. Finding this law unconstitutional did not place a positive obligation on Quebec to legislate for adequate healthcare; it removed a law that curtailed citizens’ access to adequate healthcare. On the contrary, in this case, the government put in place a law providing a benefit to certain people in Canada. The question is whether the government should be forced to extend that benefit to refugee claimants.

This is a positive obligation to which the reasoning in Chaoulli does not apply. [ 118 ] Although s. 7 has not been interpreted to place a positive obligation on the state in the past, the Supreme Court conceives of such an

interpretation in the future given that the " “living tree” " doctrine is a part of Canada’s constitutional landscape. [66] Therefore, this issue does not does not hinge on whether s. 7 can be interpreted to impose a positive right on the state to ensure security of the person, but on whether the novel application of s. 7 should be interpreted in such a way given the circumstances of this case. 3.

Does s. 7 place a positive obligation on the state in this case? [ 119 ] The appellant in Gosselin argued that a social assistance regime which set the base amount of welfare payable to persons under the age of 30 lower than the amount payable to those 30 years of age and over violated s. 7 of the Charter . [67] The appellant asked the Supreme Court to require Quebec to remove the age-based distinction so that those 30 years of age and older would receive the same amount as those under 30. The majority found that the factual record in Gosselin was insufficient to support the proposed

interpretation of s. 7. [68] The trial judge did not find the appellant’s statistical and expert evidence convincing, and there was a lack of other important evidence. [69] Further, the record contained no indication that the appellant could be considered representative of the class. [70] As a result, the factual record could not " “support the weight of a positive state obligation of citizen support.” " [71] [ 120 ] The Appellants argue that the relevant evidence from the Appellants and experts demonstrates that denying access to the CCB prevented the Appellants from meeting their basic needs. [72] Dr.

Sharpe, in particular, confirmed that during their first few years in Canada, refugee claimants are, on average, desperately poor (women in particular). [73] This Court does not disagree that the Appellants had difficulty meeting their basic needs upon arriving in Canada and that they experienced financial hardship while awaiting refugee status, but this alone does not warrant the application of a novel

interpretation of s. 7. For it to be possible for s. 7 to be applied in this way, the Appellants ought to have provided convincing statistical and expert evidence showing that their hardship warrants a positive obligation on the state to provide refugee claimants with childcare benefits. [ 121 ] Ultimately, s. 7 does not impose a positive obligation on the state concerning security of the person based upon individual economic need where generally a program otherwise creates broad economic benefits without violating the principles of fundamental justice.

The evidence must be grounded in deprivation of the guaranteed right, not upon imputed economic amelioration based upon a sooner qualification to increased payments. These temporary, or at least finite, hardships of the Appellants and their children fail to meet the threshold set by the Supreme Court as a violation of the guaranteed right to security of the person. While this ends the s. 7 analysis, the Court pursues the balance for completeness. [ 122 ] The economic hardship of refugee claimants is lamentable and demonstrable.

Their needs are great, but a guarantee to a certain benefit ought not to be a judicially created economic benefit masquerading as a constitutional right to security of the person. Properly assigned, it is the elected representatives within Parliament who should change and enhance the economic benefit if they deem fit, within their constitutionally assigned role as managers and payors of the public purse. Judicially created economic benefits under the ITA derogate from the democratic political process embedded through taxation by elected representation and its emblematic participation by citizens. 4.

Conclusion [ 123 ] The financial benefit of the CCB is not a deprived right. The non-qualification for the CCB is not linked to the right to security of the person; the state is not legislating to deny or curtail an existing right. The scheme relates to taxation and benefits; the CCB falls within an economic calculation extracted from the T1 Income Tax and Benefit Return form promulgated under the ITA .

That is the very legal reason that it is before this Court . [ 124 ] Concerning distribution and redistribution of economic benefits, Parliament, if not given deference in such areas, shall be constrained and fettered by an ever-expanding judicially determined and coined economic " “charter” " which applies where " “security of the person” " becomes a key to such a guaranteed " “read-in” " positive economic emolument despite Parliament’s determination that it not be so.

This would convert an economic need to a constitutional right, based upon judicially determined subjective need, anxiety and stress. [ 125 ] The Appellants provided insufficient evidence to prove, on balance, that the hardship experienced by refugee claimants upon entry to Canada is severe enough to warrant a novel

interpretation of s. 7. As a result, the legislation does not affect an interest protected by the right to security of the person under s. 7 of the Charter .

b) Does the exclusion of refugee claimants from the CCB deprive the Appellants of their right to security of the person? [ 126 ] Security of the person is engaged by " “state interference with an individual’s physical or psychological integrity, including any state action that causes physical or serious psychological suffering”. " [74] It provides for personal autonomy involving control over one’s

bodily integrity free from state interference. [75] The issue at this stage is whether the exclusion of refugee claimants from the definition of " “temporary resident” " deprives refugee claimants of their security of the person. [ 127 ] The Appellants argue that by denying their eligibility to the CCB, the state deprived them and their minor children of a benefit necessary for human life and survival, which in turn deprives them of their security of the person.

The Appellants’ argument centres on the evidence, claiming that it reveals that access to the CCB improved the lives of the Appellants and their children, and that denial of access to the CCB caused both physical and psychological harm.

The Appellants argue that there is a sufficient causal connection between the deprivation of the CCB and the poverty experienced by the Appellants because the Supreme Court has mandated a broad approach to causation under s. 7. [ 128 ] The Respondent argues that the Appellants have not been deprived of their security of the person because the state has not interfered with the Appellants’ physical or psychological integrity. [76] Any physical and psychological hardship experienced by the Appellants arose mainly from their difficult financial situations that began before they applied for and received the CCB. [77] For a deprivation to be made out under s. 7, there must be a " “sufficient causal connection” " between the harm experienced and the impugned law, of which there is none in this case.

The Appellants’ poverty existed before and independently of their eligibility for the benefit. [78] 1.

Is the psychological harm serious and profound? [ 129 ] The right to security of the person protects the physical and psychological integrity of the individual. [79] This right does not protect an individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer from government action. [80] To establish an infringement of security of the person, the claimant must demonstrate, on a balance of probabilities, that the state conduct in issue: … [had] a serious and profound effect on a person’s psychological integrity.

The effects of the state interference must be assessed objectively, with a view to their impact on the psychological integrity of a person of reasonable sensibility.

This need not rise to the level of nervous shock or psychiatric illness, but must be greater than ordinary stress or anxiety. [81] [ 130 ] The Appellants argue that they and their minor children were deprived of their security of the person by denial of the CCB, a benefit necessary for human life and survival. [82] Receiving the CCB and then losing it affords analysis of both situations: the period while they received the benefit and the period after they lost it.

The CCB was the difference not between life and death, but between grinding poverty and a more stable standard of living: security of the person. [83] [ 131 ] Ms. Zhang testified that the receipt of the CCB alleviated her poverty and allowed her to purchase essentials. She also described the effects of no longer receiving the CCB, including the effects on her and her children’s mental health. [84] Ms.

Yao testified to the effect of having and then losing access to the CCB. [85] Both Appellants testified that in addition to allowing them to provide the necessities of life, the CCB enabled them to provide their children with enhanced opportunities. It is not unreasonable that these additional activities could improve child development in the long term. [86] [ 132 ] A factual witness on the plight of refugee claimants testified. Mr. Meagher testified to the deep levels of poverty faced by refugee claimants with whom he works. [87] He described how many refugee claimants rely on social assistance to survive.

He also explained that ineligibility for the CCB pushes refugee claimants into deeper levels of poverty. [88] [ 133 ] Depriving the Appellants’ minor children of the CCB exposes them to the negative effects of poverty to the fullest degree, which could be mitigated or eliminated by access to the CCB. [89] The withholding of the CCB contributes to the significant and potentially permanent negative effects of poverty. Dr. Roos testified to the effect that poverty has on children.

Direct cash transfers, such as the CCB, can improve child well-being. [90] [ 134 ] Despite the findings above, being excluded from the CCB does not rise to the necessary threshold.

Without the CCB, the Appellants were able to secure the means necessary for human life and survival in a multitude of ways. [91] Any impact resulting from the Appellants’ poverty was not permanent and was mitigated by their eventual eligibility for the CCB. [92] [ 135 ] In Scheuneman , [93] the Federal Court determined that the suspension of Canada Pension Plan disability benefits, which served as partial income replacement, did not cause psychological stress at a level that would breach s. 7. [94] The Supreme Court explained the following regarding this issue in G(J) : … It is clear that the right to security of the person does not protect the individual from the ordinary stresses and anxieties that a person of reasonable sensibility would suffer as a result of government action.

If the right were interpreted with such broad sweep, countless government initiatives could be challenged on the ground that they infringe the right to security of the person, massively expanding the scope of judicial review, and, in the process, trivializing what it means for a right to be constitutionally protected. … [95] [ 136 ] While the mental health of the Appellants and their children was impacted, this does not constitute a " “serious and profound effect” " as described within G(

J) and pertaining to s. 7. Ordinary stress and anxiety are not sufficient, including, even when government action causes those present, ordinary stresses and anxieties. 2. Is there sufficient casual connection? [ 137 ] The Appellants must not only prove that they experienced serious psychological harm, but also that it resulted from the conduct of the state. [96] In other words, there must be a causal link between the impugned state conduct and the Charter violation claimed.

This connection can be established by a reasonable inference on a balance of probabilities, and does not require that the impugned law be the only or dominant cause of the prejudice suffered by the claimant. [97] A causal connection exists where the state action is a foreseeable and necessary cause of the prejudice, but this is not the only way to establish causation. [98] The burden of establishing this connection is on the Appellants. The Supreme Court in Bedford cautioned that although mere speculation is not sufficient, setting the bar too high

would risk barring meritorious claims. [99] [ 138 ] If the Appellants have been deprived of their security of the person, is there a sufficient causal connection between the deprivation and the definition of " “eligible individual” " ? It is clear that the CCB eligibility requirements are not the only or primary cause of the Appellants’ poverty. However, it is not necessary to determine if the requirements are the dominant cause. [ 139 ] The Supreme Court has mandated a broad approach to causation under s. 7 and to the test of whether the " “sufficient causal connection” " standard has been met.

The evidence demonstrates that the Appellants’ security of the person was enhanced while receiving the CCB, and deprived once they lost access to the CCB. [100] Potentially, the Appellants have moved beyond " “mere speculation.” " Receipt of the CCB improved their situations, and they suffered without it. A reasonable inference could be drawn that a sufficient causal connection exists between the requirements and the Appellants’ poverty. The bar must not be set too high.

" [ " " 140 " " ] " Other factors are at play: is ineligibility for the CCB a cause of the Appellants’ poverty, if only a meaningful partial cause? If so, arguably, poverty in Canada is at least partially perpetuated or sustained by the state; poverty could be alleviated if the government provided " “sufficient” " financial assistance. Equally, Parliament chose to provide the CCB, which the Appellants would otherwise have been able to receive but for the unattained residency requirements in the definition of " “eligible individual”.

" Overall, " “[a] sufficient causal connection is sensitive to the context of the particular case " " … .” " [101] " " [ 141 ] The novel finding of a positive element to s. 7 colours this context. The sufficient causal connection requirement sits differently from other cases. [ 142 ] Any physical or psychological hardships experienced by the Appellants were initially caused by their difficult financial or domestic situations subsisting before applying for the CCB, which were not caused, perpetuated or worsened by the Canadian state before or after entry.

The Appellants’ poverty existed before and independently of their ineligibility for the CCB. [102] [ 143 ] The world’s largest totalitarian communist regime, the People’s Republic of China, created the intolerable situation and justification for which the Appellants needed to flee China, and to apply for and ultimately receive full refugee status. The legislation that creates that critical beneficial environment, arguably essential to the life, liberty and/or security of each Appellant’s person, is the very piece of legislation now maligned, the IRPA .

Moreover, the ITA incorporates the IRPA to employ the durational and qualitative connection necessary for the Appellants to qualify for the CCB when they become Convention refugees, and simply not before that point.

c) Is the deprivation in accordance with the principles of fundamental justice? [ 144 ] The three central principles of fundamental justice recognized in the jurisprudence are arbitrariness, overbreadth, and gross disproportionality. [103] The analysis of these principles involves comparison with the object of the law that is challenged. [104] This analysis does not consider the law’s effectiveness . [105] [ 145 ] The first step is to identify the object of the impugned law. [106] The object of the impugned law must be defined precisely for the purposes of s. 7; the " “direct target of the measure” " must be identified. [107] Defining the objective too broadly would make it difficult to determine if the means used to further it are overbroad or grossly disproportionate. [108] [ 146 ] At this stage, competing social interests and public benefits conferred by the impugned law are not relevant.

These factors should instead be considered under the s. 1 analysis. [109] [ 147 ] The Supreme Court described how to characterize Parliament’s purpose in a s. 7 analysis regarding overbreadth in Moriarity . [110] More recently, the Court explained that: The most significant and reliable indicator of legislative purpose would, of course, be a statement of purpose within the subject law.

Beyond that, generally, courts seeking to identify legislative purpose look to the text, context, and scheme of the legislation and extrinsic evidence, which can (subject to the caution we offer below) include Hansard, legislative history, government publications and the evolution of the impugned provisions … . [111] 1. Arbitrariness [ 148 ] A law is arbitrary where there is no rational connection between its object and the limit that it imposes on life, liberty or security of the person. An arbitrary law is not capable of fulfilling its object

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