Canadian Council for Refugees et al. v. Canada, 2007 FC 1262

JudgePhelan, J.
CourtFederal Court (Canada)
Case DateNovember 29, 2007
JurisdictionCanada (Federal)
Citations2007 FC 1262;(2007), 317 F.T.R. 246 (FC)

Canadian Council for Refugees v. Can. (2007), 317 F.T.R. 246 (FC)

MLB headnote and full text

Temp. Cite: [2007] F.T.R. TBEd. DE.010

Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe (applicants) v. Her Majesty The Queen (respondent)

(IMM-7818-05; 2007 FC 1262)

Indexed As: Canadian Council for Refugees et al. v. Canada

Federal Court

Phelan, J.

November 29, 2007.

Summary:

In 2004, Canada and the United States entered into the Safe Third Country Agreement (STCA) whereby a foreign national who attempted to enter Canada at a land border from a "designated country" was ineligible to make a refugee claim. Interested parties applied for judicial review, seeking a declaration that the Regulation authorizing the STCA was ultra vires the power given by Parliament to the Governor-in-Council. The applicants argued further that the Governor-in-Council's actual decision to declare the United States a designated country was unlawful pursuant to administrative law principles, the Charter and international law.

The Federal Court allowed the application, holding that: (a) ss. 159.1 to 159.7 of the Immigration and Refugee Protection Regulations and the STCA were ultra vires in that the conditions to the enactment of the Regulations specified in the Immigration and Refugee Protection Act (IRPA), s. 102(1) had not been met; (b) the Governor-in-Council acted unreasonably in concluding that the United States complied with art. 33 of the Refugee Convention and art. 3 of the Convention Against Torture; (c) the Governor-in-Council failed to ensure the continuing review, particularly of the practices and policies of the United States, as required by IRPA, s. 102(2); and (d) the Regulations and the operation of the STCA were contrary to ss. 7 and 15 of the Charter and were not saved by s. 1.

Administrative Law - Topic 7525

Delegated powers - Validity of delegated powers - Rules or regulations - Ultra vires - Canada and the United States entered into the Safe Third Country Agreement (STCA) which deemed a foreign national who attempted to enter Canada at a land border from a "designated country" ineligible to make a refugee claim - Interested parties applied for judicial review, seeking a declaration that the Regulations designating the United States as a safe third country for purposes of the STCA were ultra vires the power given by Parliament to the Governor-in-Council (GIC) - The Federal Court discussed its role on this type of review - The court stated that in examining the Regulation, the court was required to engage in more than merely analysing whether the Regulation was made in good faith and not for an improper purpose - What was required was a consideration of the existence of the conditions upon which the GIC could exercise its discretion to designate a country as "safe" (i.e., whether the GIC's conclusion that U.S. practices and policies complied with art. 33 of the Refugee Convention and art. 3 of the Convention Against Torture) - The court stated that given that the GIC was required to consider certain "factors" in determining whether to designate a country, the GIC was entitled to some deference in regard to those factors requiring the exercise of judgment, specifically the practices and policies of the third country and its human rights record - The court concluded that the appropriate standard of review was reasonableness simpliciter - See paragraphs 55 to 105.

Aliens - Topic 28

Definitions and general principles - Safe third country agreements or regulations (incl. "safe country" designation) - In 2004, Canada and the United States (U.S.) entered into the Safe Third Country Agreement (STCA) whereby a foreign national who attempted to enter Canada at a land border from a "designated country" was ineligible to make a refugee claim - Interested parties (the applicants) applied for judicial review, seeking a declaration that the designation of the U.S. as a "safe third country" for asylum seekers, and the resulting ineligibility for refugee protection in Canada of certain asylum seekers, was invalid and unlawful - The applicants claimed, inter alia, that the Regulation authorizing the STCA was invalid because the preconditions to enacting the Regulation were not met since the U.S. did not comply with certain international conventions protecting refugees and prohibiting returning people to places of torture and, in any event, the Regulations and STCA offended the Charter - The applicants also sought a declaration that the Governor-in-Council's decision to declare the U.S. a designated country was unlawful pursuant to administrative law principles, the Charter and international law - The Federal Court allowed the application, holding that: (a) ss. 159.1 to 159.7 of the Immigration and Refugee Protection Regulations and the STCA were ultra vires in that the conditions to the enactment of the Regulations specified in the Immigration and Refugee Protection Act (IRPA), s. 102(1) had not been met; (b) the Governor-in-Council acted unreasonably in concluding that the U.S. complied with art. 33 of the Refugee Convention and art. 3 of the Convention Against Torture; (c) the Governor-in-Council failed to ensure the continuing review, particularly of the practices and policies of the U.S., as required by IRPA s. 102(2); and (d) the Regulations and the operation of the STCA were contrary to the ss. 7 and 15 of the Charter and were not saved by s. 1.

Civil Rights - Topic 660.2

Liberty - Limitations on - Immigration - Refugees - In 2004, Canada and the United States (U.S.) entered into the Safe Third Country Agreement (STCA) whereby a foreign national who attempted to enter Canada at a land border from a "designated country" was ineligible to make a refugee claim - Interested parties (the applicants) applied for judicial review, seeking a declaration that the designation of the U.S. as a "safe third country" for asylum seekers, and the resulting ineligibility for refugee protection in Canada of certain asylum seekers, was invalid and unlawful - The applicants claimed, inter alia, that the Regulation authorizing the STCA and the STCA offended the Charter as did the Governor-in-Council's decision to declare the U.S. a designated country - The Federal Court allowed the application, inter alia, holding that the Regulations and the operation of the STCA were contrary to the ss. 7 and 15 of the Charter and were not saved by s. 1 - See paragraphs 276 to 340.

Civil Rights - Topic 1002

Discrimination - Immigration - Refugees - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 1324

Security of the person - Immigration - Claim to refugee status - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 5662

Equality and protection of the law - Particular cases - Immigration - Refugees - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 8348

Canadian Charter of Rights and Freedoms - Application - Exceptions - Reasonable limits prescribed by law (s.1) - [See Civil Rights - Topic 660.2 ].

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - Canada and the United States entered into the Safe Third Country Agreement (STCA) which deemed a foreign national who attempted to enter Canada at a land border from a "designated country" ineligible to make a refugee claim - The Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International and John Doe, a Colombian refugee claimant in the United States (the applicants) applied for judicial review, seeking a declaration that the Regulations designating the United States as a safe third country for purposes of the STCA were ultra vires the power given by Parliament to the Governor-in-Council - The applicants argued further that the Governor-in-Council's decision to actually declare the United States a designated country was unlawful pursuant to administrative law principles, the Charter and international law - Canada challenged the standing of the three organizations to bring the judicial review, arguing that they failed to meet the third prong of the standing test (i.e., the absence of any other reasonable and effective manner to have this matter brought before a court) - The Federal Court held that the organizations had the requisite standing - The court noted that the John Doe applicant was represented by the three organizations and did not seek separate representation - The court also expressed doubts as to whether any individual refugee could adequately bring this matter before the court - See paragraphs 37 to 54.

Practice - Topic 219

Persons who can sue and be sued - Individuals and corporations - Status or standing - Validity of legislation - [See Civil Rights - Topic 8583 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose of regulation authorized by empowering statute - [See Administrative Law - Topic 7525 ].

Cases Noticed:

Canadian Council of Churches v. Canada et al., [1990] 2 F.C. 534; 106 N.R. 61 (F.C.A.), affd. in part [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 8].

Thorson v. Canada (Attorney General), [1975] 1 S.C.R. 138; 1 N.R. 225, refd to. [para. 38].

Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342; 92 N.R. 110; 75 Sask.R. 82, refd to. [para. 38].

Finlay v. Canada, [1986] 2 S.C.R. 607; 71 N.R. 338, refd to. [para. 38].

Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791; 335 N.R. 25, refd to. [para. 44].

Vriend et al. v. Alberta, [1998] 1 S.C.R. 493; 224 N.R. 1; 212 A.R. 237; 168 W.A.C. 237, refd to. [para. 47].

Sierra Club of Canada v. Canada (Minister of Finance) et al. (1998), 157 F.T.R. 123 (T.D.), refd to. [para. 50].

Multani v. Commission scolaire Marguerite-Bourgeoys et al., [2006] 1 S.C.R. 256; 345 N.R. 201, refd to. [para. 61].

Inuit Tapirisat of Canada and National Anti-Poverty Organization v. Canada (Attorney General), [1980] 2 S.C.R. 735; 33 N.R. 304, refd to. [para. 62].

Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board, [1983] 1 S.C.R. 106; 46 N.R. 91, refd to. [para. 65].

Thorne's Hardware Ltd. v. R. - see Irving Oil Ltd., Canaport Ltd., Kent Lines Ltd. and Thorne's Hardware Ltd. v. National Harbours Board.

Spinney v. Canada (Minister of Fisheries and Oceans) (2000), 183 F.T.R. 71 (T.D.), refd to. [para. 67].

De Guzman v. Canada (Minister of Citizenship and Immigration) (2005), 345 N.R. 73; 262 D.L.R.(4th) 13 (F.C.A.), refd to. [para. 68].

Canadian Association of Regulated Importers et al. v. Canada (Attorney General) et al., [1994] 2 F.C. 247; 164 N.R. 342 (F.C.A.), refd to. [para. 70].

Doyle (James Sr.) & Sons Ltd. v. Canada (Minister of Fisheries and Oceans) (1992), 54 F.T.R. 241; 92 D.L.R.(4th) 520 (T.D.), refd to. [para. 71].

Saskatchewan Wheat Pool v. Canada (Attorney General) (1993), 112 Sask.R. 181 (Q.B.), refd to. [para. 71].

Gulf Canada Resources Ltd. v. Alberta et al. (2001), 285 A.R. 307 (Q.B.), refd to. [para. 71].

Jafari v. Minister of Employment and Immigration, [1995] 2 F.C. 595; 180 N.R. 330 (F.C.A.), refd to. [para. 72].

United Taxi Drivers' Fellowship of Southern Alberta et al. v. Calgary (City), [2004] 1 S.C.R. 485; 318 N.R. 170; 346 A.R. 4; 320 W.A.C. 4, refd to. [para. 75].

Sunshine Village Corp. v. Parks Canada et al., [2004] 3 F.C. 600; 320 N.R. 331 (F.C.A.), refd to. [para. 75].

Suzuki (David) Foundation et al. v. British Columbia (Attorney (General), [2004] B.C.T.C. 620; 17 Admin. L.R.(4th) 85 (S.C.), refd to. [para. 76].

Jose Pereira E. Hijos S.A. v. Canada (Attorney General) (2007), 358 N.R. 310; 2007 FCA 20, refd to. [para. 77].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1, refd to. [para. 92].

T.I. v. United Kingdom (2000), App. No. 43844/98 (E.C.H.R.), refd to. [para. 114].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Adan, [2001] 2 A.C. 477 (H.L.), refd to. [para. 114].

R. v. United Kingdom (Secretary of State for the Home Department); Ex parte Yogathas, [2003] 1 A.C. 920 (H.L.), refd to. [para. 114].

Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171 (F.C.A.), refd to. [para. 134].

Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689; 153 N.R. 321, refd to. [para. 134].

Kadenko et al. v. Canada (Solliciteur général) (1996), 206 N.R. 272; 143 D.L.R.(4th) 532 (F.C.A.), leave to appeal refused (1997), 218 N.R. 80 (S.C.C.), refd to. [para. 134].

Acosta, Re (1985), 19 I. & N. Dec. 211 (B.I.A.), refd to. [para. 148].

Immigration and Naturalization Service v. Cardoza-Fonseca (1987), 480 U.S. 421, refd to. [para. 148].

Mogharrabi, Re (1987), 19 I. &. N. Dec. 439 (B.I.A.), refd to. [para. 151].

Huerta v. Ministre de l'Emploi et de l'Immigration (1993), 157 N.R. 225 (F.C.A.), refd to. [para. 155].

El Balazi v. Canada (Minister of Citizenship and Immigration), [2006] F.T.R. Uned. 27; 2006 FC 38, refd to. [para. 156].

Jabari v. Turkey, [2000] ECHR 369, refd to. [para. 157].

Williams v. Canada (Secretary of State), [1995] F.C.J. No. 1025, refd to. [para. 163].

Elcock v. Canada (Minister of Citizenship and Immigration) (1999), 175 F.T.R. 116 (T.D.), refd to. [para. 163].

Diluna v. Minister of Employment and Immigration (1995), 92 F.T.R. 67 (T.D.), refd to. [para. 163].

A.H., Re (2005), 23 I. & N. Dec. 774 (A.G.), refd to. [para. 174].

S-K-, Re (2006), 23 I. & N. Dec. 936 (B.I.A.), refd to. [para. 178].

Arias v. Ashcroft (2005), 143 Fed. Appx. 464 (B.I.A.), refd to. [para. 180].

Canada (Minister of Citizenship and Immigration) v. Asghedom (2001), 210 F.T.R. 294 (T.D.), refd to. [para. 188].

Moreno and Sanchez v. Minister of Employment and Immigration, [1994] 1 F.C. 298; 159 N.R. 210 (F.C.A.), refd to. [para. 188].

Ramirez v. Minister of Employment and Immigration, [1992] 2 F.C. 306; 135 N.R. 390 (F.C.A.), refd to. [para. 188].

Kathirgamu v. Canada (Minister of Citizenship and Immigration), [2005] F.T.R. Uned. 180; 2005 FC 300, refd to. [para. 189].

Bocova v. Gonzales (2005), 412 F.3d 257 (1st Cir. C.A.), refd to. [para. 210].

S-P-, Re (1996), 21 I. & N. Dec. 486 (B.I.A.), refd to. [para. 213].

Immigration and Naturalization Service v. Elias-Zacarias (1992), 502 U.S. 478, refd to. [para. 215].

Maldonado v. Minister of Employment and Immigration, [1980] 2 F.C. 302; 31 N.R. 34 (F.C.A.), refd to. [para. 218].

Lubana v. Canada (Minister of Citizenship and Immigration) (2003), 228 F.T.R. 43; 2003 FCT 116, refd to. [para. 218].

Attakora v. Minister of Employment and Immigration (1989), 99 N.R. 168 (F.C.A.), refd to. [para. 222].

Ahortor v. Minister of Employment and Immigration (1993), 65 F.T.R. 137 (T.D.), refd to. [para. 222].

Singh (Nardeep) v. Canada (Minister of Citizenship and Immigration) (2003), 233 F.T.R. 166; 2003 FCT 556, refd to. [para. 223].

S-M-J-, Re (1997), 21 I. & N. Dec. 722 (B.I.A.), refd to. [para. 224].

Li (Y.) v. Canada (Minister of Citizenship and Immigration) (2005), 329 N.R. 346; 2005 FCA 1, refd to. [para. 243].

J-E-, Re (2002), 23 I. & N. Dec. 291 (B.I.A.), refd to. [para. 244].

Zubeda v. Ashcroft (2003), 333 F.3d 463 (3rd Cir. C.A.), refd to. [para. 247].

Khouzam v. Ashcroft (2004), 361 F.3d 161 (2nd Cir. C.A.), refd to. [para. 251].

United States of America v. Burns and Rafay, [2001] 1 S.C.R. 283; 265 N.R. 212; 148 B.C.A.C. 1; 243 W.A.C. 1, refd to. [para. 258].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 278].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271, refd to. [para. 307].

R. v. Swain, [1991] 1 S.C.R. 933; 125 N.R. 1; 47 O.A.C. 81, refd to. [para. 308].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 316].

Hodge v. Canada (Minister of Human Resources Development), [2004] 3 S.C.R. 357; 326 N.R. 201, refd to. [para. 320].

Auton et al. v. British Columbia (Minister of Health) et al., [2004] 3 S.C.R. 657; 327 N.R. 1; 206 B.C.A.C. 1; 338 W.A.C. 1, refd to. [para. 320].

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143; 91 N.R. 255, refd to. [para. 325].

Eldridge et al. v. British Columbia (Attorney General) et al., [1997] 3 S.C.R. 624; 218 N.R. 161; 96 B.C.A.C. 81; 155 W.A.C. 81, refd to. [para. 326].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335, refd to. [para. 334].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 15(1) [para. 25].

Canada-United States Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (Safe Third Country Agreement), art. 4(1) [para. 9].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect. 3(d), sect. 3(f) [para. 24]; sect. 96, sect. 97 [para. 18]; sect. 101(1)(e) [para. 20]; sect. 102(1)(a) [para. 21]; sect. 102(2), sect. 102(2)(b) [para. 22]; sect. 102(3) [para. 265].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 159.1, sect. 159.2, sect. 159.3, sect. 159.4, sect. 159.5, sect. 159.6, sect. 159.7 [para. 338].

Safe Third Country Agreement - see Canada-United States Agreement for Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries.

Safe Third Country Agreement Regulations - see Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations.

United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, art. 1 [para. 19]; art. 3 [para. 17]; art. 33 [para. 16].

Authors and Works Noticed:

Arar Report - see Canada, Report of Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar.

Canada, One-Year Review Report, pp. 35 [para. 294]; 36 [paras. 294, 295].

Canada, Report of Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (Arar Report) (2006), generally [para. 260].

United Nations High Commissioner for Refugees, Monitoring Report (June 2006), p. 36, Recommendation 13.0 [para. 297]; p. 64 [para. 303].

Waldman, Lorne, Immigration Law and Practice (2nd Ed.) (2006 Looseleaf), vol. 1, para. 8.26, footnote 2 [para. 254].

Counsel:

Barbara Jackman, Andrew Brouwer and Leigh Salsberg, for the applicants, Canadian Council for Refugees; Canadian Council of Churches and John Doe;

Lorne Waldman, for the applicant, Amnesty International;

David Lucas, François Joyal, Greg George and Matina Karvellas, for the respondent.

Solicitors of Record:

Jackman & Associates, Toronto, Ontario, for the applicants, Canadian Council for Refugees, Canadian Council of Churches and John Doe;

Waldman & Associates, Toronto, Ontario, for the applicant, Amnesty International;

John H. Sims, Q.C., Deputy Attorney General of Canada, Toronto, Ontario, for the respondent.

This application was heard on February 5 and 6, 2007, at Toronto, Ontario, before Phelan, J., of the Federal Court, who delivered the following judgment on November 29, 2007.

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    ...462, 665 Canadian Council for Refugees v Canada, 2006 FC 1046 ......................... 367, 602 Canadian Council for Refugees v Canada, 2007 FC 1262, rev’d 2008 FCA 229 ............................................................................. 252, 645 Canadian Council of Churches v......
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