Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship)

Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship)

The Court held that although prior FCA authority (CCR 2008) bound it on the vires issue, the evidence established that enforcement of the STCA causes ineligible claimants who arrive from the US at land POEs to be detained by US authorities such that Canadian action is a necessary precondition to deprivation; detention and attendant conditions engage liberty and security of the person and the statutory scheme is overbroad and grossly disproportionate to the objective of responsibility sharing; the government failed to justify the infringement under s.1; accordingly ss.101(1)(e) IRPA and s.159.3 IRPR are of no force or effect under s.52, suspended for 6 months to allow legislative response.

Citation
2020 FC 770
Parties
Applicant Public Interest Parties: Canadian Council for Refugees; Amnesty International; Canadian Council of Churches; Applicant Individual Claimants: ABC; DE; FG (by litigation guardian ABC); Applicant Individual Claimant: Nedira Jemal Mustefa; Applicants Family Claimants: Mohammad Majd Maher Homsi; Hala Maher Homsi; Karam Maher Homsi; Reda Yassin Al Nahass; Respondent Federal Respondents: Minister of Immigration, Refugees and Citizenship; Minister of Public Safety and Emergency Preparedness (Attorney General of Canada)
Court
Federal Court
Jurisdiction
Canada
Judgment Date
22 July 2020
Procedural Posture
Judicial Review of Refugee Ineligibility Decisions and Constitutional Challenge to STCA / Federal Court Judgment (reasons and Orders)
Outcome
Judicial review applications granted; ss.101(1)(e) IRPA and 159.3 IRPR declared of no force or effect under s.52 of the Constitution Act, 1982 for violating s.7 of the Charter; declaration suspended for 6 months; questions certified.
Legal Topics
Safe Third Country Agreement, S.159.3 IRPR / S.101(1)(e) IRPA Designation, Section 7 Charter Life Liberty Security, Section 1 Charter Justification, Section 15 Charter Equality, Ultra Vires and Delegation, Detention and Refoulement, Continuing Review Obligations Under S.102(3) IRPA
Source Language
English
Immigration Law Refugee Law Constitutional Law Administrative Law International Human Rights Law Safe Third Country Agreement S.159.3 IRPR / S.101(1)(e) IRPA Designation Section 7 Charter Life Liberty Security +5 more

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Parties

Canadian Council for Refugees; Amnesty International; Canadian Council of Churches

Applicant Public Interest Parties

ABC; DE; FG (by litigation guardian ABC)

Applicant Individual Claimants

Nedira Jemal Mustefa

Applicant Individual Claimant

Mohammad Majd Maher Homsi; Hala Maher Homsi; Karam Maher Homsi; Reda Yassin Al Nahass

Applicants Family Claimants

Minister of Immigration, Refugees and Citizenship; Minister of Public Safety and Emergency Preparedness (Attorney General of Canada)

Respondent Federal Respondents

Procedural Posture

Judicial Review of Refugee Ineligibility Decisions and Constitutional Challenge to STCA / Federal Court Judgment (reasons and Orders)

Legal Issues

  1. 1 Is s.159.3 of the IRPR ultra vires the IRPA?
  2. 2 Does the STCA infringe s.7 of the Charter (life, liberty and security of the person)?
  3. 3 If s.7 is infringed, is the infringement justified under s.1 of the Charter?

Ratio Decidendi

The Court held that although prior FCA authority (CCR 2008) bound it on the vires issue, the evidence established that enforcement of the STCA causes ineligible claimants who arrive from the US at land POEs to be detained by US authorities such that Canadian action is a necessary precondition to deprivation; detention and attendant conditions engage liberty and security of the person and the statutory scheme is overbroad and grossly disproportionate to the objective of responsibility sharing; the government failed to justify the infringement under s.1; accordingly ss.101(1)(e) IRPA and s.159.3 IRPR are of no force or effect under s.52, suspended for 6 months to allow legislative response.

Court Disposition

Judicial review applications granted; ss.101(1)(e) IRPA and 159.3 IRPR declared of no force or effect under s.52 of the Constitution Act, 1982 for violating s.7 of the Charter; declaration suspended for 6 months; questions certified.

Orders

  • No costs awarded