Generally speaking, refugee claimants arriving in Canada from a country designated as a safe country under the Regulations are ineligible to claim refugee protection in Canada. Since 2004, the United States has been designated as a safe country under the Act and Regulations following an agreement between the United States and Canada, commonly referred to as the Safe Third Country Agreement. Annual reviews of this designation are conducted under subsection 102(3) of the Act.
The applicants brought applications for judicial review to the Federal Court alleging that the designation of the United States under section 159.3 of the Regulations as a safe country was outside the authority granted by the Act and was therefore ultra vires the Federal Government. As well, they argued that this designation along with the resulting inability of refugee claimants to claim refugee protection in Canada under the Act, was an infringement of sections 7 and 15 of the Charter and were not justified under section 1.
The Federal Court rejected the allegation that the Regulations were ultra vires the authority granted to the Federal Government under the Act, but did find that section 159.3 of the Regulations and section 101(1)(e) of the Act breached section 7 of the Charter and were not justified under section 1. As a result, the Federal Court declared that they were of no force or effect. Given this conclusion, the Federal Court declined to address the section 15 issues.
The Federal Government appealed this decision to the Federal Court of Appeal and the applicants cross-appealed the issues of the Federal Court’s rejection of their ultra vires argument and the Federal Court’s refusal to address the section 15 issues.
FEDERAL COURT OF APPEAL DECISION
In an unanimous decision authored by Justice Stratas, the Federal Court of Appeal allowed the Federal Government’s appeal, dismissed the applicants’ cross-appeal, set aside the judgment of the Federal Court and dismissed the applications for judicial review.
The Federal Court of Appeal dismissed the cross-appeal as being improper given that the applicants had succeeded in the Federal Court and obtained the relief they had sought, namely that the relevant sections of the Act and the Regulations were unconstitutional and should be struck down. As a result, it was improper to cross-appeal on the issues of ultra vires and section 15, as an appeal is taken from the judgment below and not for the reasons for that judgment. Although the cross-appeal was dismissed, the applicants were still entitled to raise the ultra vires and section 15 issues in response to the appeal and to argue that they were reasons why the decision below should be upheld.
With respect to the merits of the appeal, the Federal Court of Appeal was concerned that the applicants had attempted in their challenge to cherry pick one specific section from the Act and one from the Regulations and that they instead needed to consider the entirety of the Act and the Regulations and how they work together in order for the court to properly consider their constitutionality in a more fulsome context. In this regard, the court concluded that the applicants should not have focussed their challenge on the constitutionality of the Act and the Regulations, but rather on the administrative review authorised by subsection 102(3) of the Act whereby the designation of the United States as a safe third country is annually administratively reviewed and determined.
Further, this narrow focus had also led to a record which had been developed too narrowly to permit effective judicial review. As stated by the court:
“Where administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation must be challenged ……. Challenging the legislation and ignoring the administrative action or administrative inaction will not satisfy the requirement of causation between state action and the rights infringement. This can also lead to the development of an unduly artificial and narrow evidentiary record.”
In the court’s view, the failure to focus the challenge on the appropriate state action not only failed to address the requirement of causation that is needed for a Charter challenge but also rendered the evidentiary record before the court too thin on key issues to permit responsible adjudication. As a result, the applicants’ challenges had to be dismissed.
In that regard, the court noted that none of the content of the 2016, 2017 or 2018 decisions to declare the United States to be a safe third party were in evidence before the court nor was any of the material that those reviews were based upon and they were necessary for the judicial review to be conducted.
The court also commented that it is not the volume of the evidence before the court that is important but rather the quality or value of it. In that regard media reports as to actions in the United States were not a sufficient evidentiary foundation for Charter challenges of such importance.
Lastly, the court also indicated that the applicants should have used the tools available to them to obtain the review decisions and the documents and materials that they were based upon. If there was any objections or privileges claimed by Canada with respect to them, the court had effective tools to address those privilege issues and to assist the parties to prepare a record which respects those privileges but still allows for proper judicial review.
When seeking to challenge government action, consideration should be made as to what is the proper decision or action to be challenged and to frame your challenge broadly to capture as much as possible in that regard.
As well, it is also important to analyse what is the appropriate evidentiary record which needs to be obtained to support your challenges and how that record can be compiled, what steps will need to be taken, what likely objections are to be made and how best those objections can be addressed, so that ultimately an effective record is before the court to permit proper judicial review.
Justice Stratas reasons are helpful in this regard and provide a road map as to the tools available to the court and the leading decisions that have wrestled with those issues.
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