Canadian Council for Refugees et al. v. Canada, (2008) 385 N.R. 1 (FCA)

• Judge: Richard, C.J., Noël and Evans, JJ.A.
• Court: Federal Court of Appeal (Canada)
• Case Date: May 21, 2008
• Jurisdiction: Canada (Federal)
• Citations: (2008), 385 N.R. 1 (FCA);2008 FCA 229;[2008] SJ No 324 (QL);312 Sask R 265

Cdn. Council for Refugees v. Can. (2008), 385 N.R. 1 (FCA)

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[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2009] N.R. TBEd. FE.015

Her Majesty the Queen (appellant) v. Canadian Council for Refugees, Canadian Council of Churches, Amnesty International and John Doe (respondents)

(A-37-08; 2008 FCA 229; 2008 CAF 229)

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

Federal Court of Appeal

Richard, C.J., Noël and Evans, JJ.A.

June 27, 2008.

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, in a decision reported 317 F.T.R. 246, 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 the ss. 7 and 15 of the Charter and were not saved by s. 1. The court's judgment was to come into effect on February 1, 2008, at which point the STCA, which had been in effect since 2004, would cease to operate in Canada. Canada filed an appeal and applied for a stay of the Federal Court's decision pending the outcome of the appeal.

The Federal Court of Appeal, in a decision reported 373 N.R. 387, per Richard, C.J., granted the stay. Thereafter, the appeal proceeded on the basis of the following certified questions:

"1) What is the appropriate standard of review in respect of the Governor-in-Council's decision to designate the United States of America as a 'safe third country' pursuant to s. 102 of the Immigration and Refugee Protection Act?"

"2) Are paragraphs 159.1 to 159.7 (inclusive) of the Immigration and Refugee Protection Regulations and the Safe Third Country Agreement between Canada and the United States of America ultra vires and of no legal force and effect?"

"3) Does the designation of the United States of America as a 'safe third country' alone or in combination with the ineligibility provision of clause 101(1)(e) of the Immigration and Refugee Protection Act violate sections 7 and 15 of the Canadian Charter of Rights and Freedoms and is such violation justified under section 1?"

The Federal Court of Appeal allowed the appeal and set aside the decision below. The court held that the answer to the first certification was that the appropriate standard of review was "correctness". The answer to the second question was "no" and the answer to the third question was that no answer could be given at this stage.

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 - The Governor-in-Council (GIC), acting under the authority of ss. 101 and 102 of the Immigration and Refugee Protection Act, promulgated s. 159.3 of the Immigration and Refugee Protection Regulations designating the United States as a safe third country - Interested parties applied for judicial review, challenging the vires of the regulation - An issue arose as to the appropriate standard of review in respect of the GIC's decision to designate the United States as a "safe third country" under s. 102 - The Federal Court of Appeal held that the matter raised was a pure vires issue - The court stated that an attack aimed at the vires of a regulation involved the narrow question of whether the conditions precedent set out by Parliament for the exercise of the delegated authority were present at the time of the promulgation, an issue that invariably called for a standard of correctness - See paragraphs 51 to 63.

Aliens - Topic 28

Definitions and general principles - Safe third country agreements or regulations (incl. "safe country" designation) - 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 Governor-in-Council (GIC), acting under the authority of ss. 101 and 102 of the Immigration and Refugee Protection Act (IRPA), promulgated Immigration and Refugee Protection Regulations, ss. 159.1 to 159.7, dealing with safe country designations in general and designating the United States as a safe third country - Interested parties applied for judicial review, raising an issue as to whether ss. 159.1 to 159.7 of the Regulations and the STCA were ultra vires - The Federal Court of Appeal, applying a standard of correctness, held that the impugned regulations were not ultra vires - The court stated that there were four factors to be considered before designating a country which were expressly set out in s. 102(2) of the IRPA (i.e., factors relating to whether the country to be designated complied with certain United Nations Conventions and was respectful of human rights) - The consideration of those factors was framed as a condition precedent to the designation - Once it was accepted, as it had to be in this case, that the GIC had given due consideration to those four factors, and formed the opinion that the candidate country was compliant with the relevant articles of the Conventions and respectful of human rights, there was nothing left to be reviewed judicially where there was no suggestion of bad faith or improper purpose - The fact that the interested parties believed that the United States did not "actually" comply with its Convention obligations was not relevant since that was not the issue to be decided - What was relevant was that the GIC considered the s. 102(2) factors, and acting in good faith, designated the United States as a country that complied with the relevant Conventions and was respectful of human rights - See paragraphs 64 to 82.

Aliens - Topic 28

Definitions and general principles - Safe third country agreements or regulations (incl. "safe country" designation) - 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 Governor-in-Council (GIC), acting under the authority of ss. 101 and 102 of the Immigration and Refugee Protection Act (IRPA), promulgated Immigration and Refugee Protection Regulations, ss. 159.1 to 159.7, dealing with safe country designations in general and designating the United States as a safe third country - Interested parties applied for judicial review, claiming that not only was the original designation ultra vires, but also the ongoing designation because the GIC failed to ensure the continuing review, particularly of the practices and policies of the United States, as required by IRPA s. 102(3) - The applications judge accepted this argument - The Crown appealed - The Federal Court of Appeal held that the record did not support the applications judge's conclusion that the GIC was in breach of its obligation to conduct the ongoing review mandated by s. 102(3) of the IRPA - See paragraphs 83 to 97.

Aliens - Topic 28

Definitions and general principles - Safe third country agreements or regulations (incl. "safe country" designation) - 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 Governor-in-Council (GIC), acting under the authority of ss. 101 and 102 of the Immigration and Refugee Protection Act (IRPA), promulgated Immigration and Refugee Protection Regulations, ss. 159.1 to 159.7, dealing with safe country designations in general and designating the United States as a safe third country - Interested parties, based on their public interest standing, applied for judicial review, challenging the validity of the Regulations on Charter grounds - They argued that a class of refugees would be subject to a real risk of refoulement as a result of the STCA and that therefore, their ss. 7 and 15 Charter rights would be violated - The applications judge agreed - The Crown appealed - The Federal Court of Appeal held that this issue could not be determined at this stage - There was no factual basis upon which to assess the alleged Charter breaches - The court stated that "This challenge, however, should be assessed in a proper factual context - that is, when advanced by a refugee who has been denied asylum in Canada pursuant to the Regulations and faces a real risk of refoulement in being sent back to the U.S. pursuant to the Safe Third Country Agreement" - See paragraphs 98 to 105.

Civil Rights - Topic 8583

Canadian Charter of Rights and Freedoms - Practice - Who may raise Charter issues - [See third Aliens - Topic 28 ].

Statutes - Topic 5367

Operation and effect - Delegated legislation - Regulations - Validity of - Ultra vires - Whether purpose authorized by empowering statute - [See Administrative Law - Topic 7525 and first Aliens - Topic 28 ].

Cases Noticed:

Canadian Council of Churches v. Canada (Minister of Employment and Immigration), [1990] F.C.J. No. 224 (F.C.A.), refd to. [para. 6].

Canadian Council of Churches v. Canada et al., [1992] 1 S.C.R. 236; 132 N.R. 241, refd to. [para. 6].

Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; 58 N.R. 1, refd to. [para. 40].

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. 40].

Law v. Minister of Employment and Immigration, [1999] 1 S.C.R. 497; 236 N.R. 1, refd to. [para. 43].

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

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. 53].

Jafari v. Minister of Employment and Immigration, [1995] 2 F.C. 595; 180 N.R. 330 (F.C.A.), refd to. [para. 54].

Saskatchewan Wheat Pool et al. v. Canada (Attorney General) (1993), 67 F.T.R. 98; 107 D.L.R.(4th) 190 (T.D.), refd to. [para. 55].

Sunshine Village Corp. v. Parks Canada et al., [2004] 3 F.C.R. 600; 320 N.R. 331; 2004 FCA 166, refd to. [para. 57].

New Brunswick (Board of Management) v. Dunsmuir (2008), 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 58].

Suresh v. Canada (Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3; 281 N.R. 1; 2002 SCC 1, refd to. [para. 60].

Telecommunications Workers Union v. Canadian Radio-Television and Telecommunications Commission et al. (2003), 312 N.R. 128; 233 D.L.R.(4th) 298; 2003 FCA 381, refd to. [para. 80].

Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817; 243 N.R. 22; 174 D.L.R.(4th) 193, refd to. [para. 98].

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982, addendum [1998] 1 S.C.R. 1222; 226 N.R. 201; 160 D.L.R.(4th) 193; 1998 CanLII 788, refd to. [para. 98].

R. v. United Kingdom (Secretary of State for the Home Department), ex. p. Yogathas, [2002] UKHL 36, refd to. [para. 126].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1, sect. 7, sect. 15(1) [para. 2].

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

Federal Courts Act, R.S.C. 1985, c. F-7, sect. 18 [para. 51].

Immigration and Refugee Protection Act, S.C. 2001, c. 27, sect 101, sect. 102 [para. 10].

Immigration and Refugee Protection Act Regulations (Can.), Immigration and Refugee Protection Regulations, SOR/2002-227, sect. 159.1, sect. 159.2 [para. 1, Appendix]; sect. 159.3 [para. 11]; sect. 159.4, sect. 159.5, sect. 159.6, sect. 159.7 [para. 1, Appendix].

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 Relating to the Status of Refugees, art. 33 [para. 8].

United Nations Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, art. 3 [para. 8].

Authors and Works Noticed:

Hathaway, James C., The Rights of Refugees Under International Law (2005), p. 301 [para. 114].

Sgayias, David, Kinnear, Meg, Rennie, Donald J., and Saunders, Brian J., Federal Court Practice, 1991-92 (1991), p. 89 [para 55].

Counsel:

David Lucas, Greg G. George and Matina Karvellas, for the appellant;

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

Lorne Waldman, for the respondent, Amnesty International.

Solicitors of Record:

John H. Sims, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the appellant;

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

Waldman & Associates, Toronto, Ontario, for the respondent, Amnesty International.

This appeal was heard in Toronto, Ontario, on May 21, 2008, before Richard, C.J., Noël and Evans, JJ.A., of the Federal Court of Appeal. The decision of the court was delivered in Ottawa, Ontario, on June 27, 2008, including the following opinions:

Noël, J.A. (Richard, C.J., concurring) - see paragraphs 1 to 105.

Evans, J.A., concurring reasons - see paragraphs 106 to 131.