FCA reverses decision on STCA

In a decision dated 15 APR 2021, the Federal Court of Appeal overturned the previous decision by Justice MacDonald regarding the Safe Third Country Agreement (STCA) and the constitutionality of this Agreement. This is a disappointing yet predictable decision. I have huge respect for my former professor and FCA Justice Stratus but I disagree with his reasoning. Based on communications with lawyers at the Canadian Association for Refugee Lawyers (CARL) and staff at the Canadian Council for Refugee (CCR), I expect this decision to be appealed to the Supreme Court of Canada (SCC) for final judgment. STCA

As you may be aware, I have been outspoken on the STCA for many years. On 10 June 2017, I gave a presentation to the national CBA immigration conference in Toronto, Ontario with Officer Jurisic on behalf of Immigration, Refugee and Citizenship Canada (IRCC) and Officer Nicolaou on behalf of Canada Border Services Agency (CBSA). Since 2016, I have also given interviews on CBC News, Global News, CTV News, The Toronto Star and many other news organizations on the constitutional and legal issues with the STCA.

Based on the extensive and objective evidence presented to Justice MacDonald at Federal Court, I agree with her analysis that the USA fails to meet its international obligations for asylum seekers. I agree with her conclusion that the legislative scheme per Canadian law fails to offer sufficient protection to individuals who are seeking to enter Canada from the USA and access the Immigration and Refugee Board (IRB-RPD) for a proper and fair hearing. 

Justice Stratas’ decision has been published on the FCA website and the full decision can be found online. His three (3) main points are these:

  1. The Claimants could have challenged the review process in IRPA and they did not;
  2. The Claimants could have asked for judicial review of the Officer’s decision or filed mandamus applications to Federal Court instead and they did not; and.
  3. The Claimants could have used certiorari procedures to challenge the administrative decisions and they did not.

In my view, this first point is valid and I have been very critical of the Government of Canada’s failure to follow the mandatory review process in IRPA. They have repeatedly failed to adhere to these provisions in IRPA. These review provisions are in the law and Justice Stratas is correct that the government has failed to meet its legal obligations per the review process.

I will not comment on points #2 and #3 at the moment as I am preparing a detailed analysis of those issues.

My main critique of the FCA decision is that it fails to sufficiently consider the blatant violations of international law. I agree with another former professor Sharry Aiken:

“The court didn’t find that conditions in detention were acceptable — what they said was that there is an effective safety valve. But the evidence brought forward in these cases was that the safety valve isn’t working,” she said. “The court was not wrong that in theory the review process could have been part of the challenge, but doing so would have mired the case in years of litigation about privilege because the government has said the process is privileged information, and in the meantime real people are suffering. So, it was the expert opinion of those who advised on the case, including many administrative law scholars, that that pathway would have been not feasible in the circumstances.”

In other words, it is true that the claimants could have argued different points of law, as identified by FCA Justice Stratas; however, the fact that they focused on other points, and their arguments held up at Federal Court, means that those points should have been the focus of the FCA decision. Those were the points in the underlying decision.

Politics is the other side of this issue. The Federal Court of Canada decision re STCA was made with the Trump Administration as the backdrop. Under that administration, the violations of human rights law and international law were blatant and indefensible. Now, under the Biden Administration, it seems that relations between Canada and the USA may warm up and we may not see as many clear violations south of the border.

In my view, the FCA decision should be appealed to the SCC for final determination on the future of the STCA. I would urge the Trudeau government to take the comments of Justice MacDonald seriously. The current system should be reviewed and we should not take the past assumptions for granted. By allowing human rights violations in the USA and not allowing those refugee claimants access to the Canadian refugee determination system, Canadians are complicit in the abuse.


Federal Court Success re MPNP and Misrepresentation

Congratulations to our client Ievgen Agapi, a truck driver from Ukraine, and all the supporting people who assisted with this case. Justice Ahmed of the Federal Court of Canada agreed with our arguments that the Visa Officer in Kiev failed to consider whether the alleged misrepresentation was honestly and reasonably made. Click here to read the full decision.

This is a significant decision in the jurisprudence of misrepresentation, as well as the processing of MPNP applications.

In the words of Justice Ahmed:

14]  The Applicant points out that section 40 of the IRPA does not apply to misrepresentations made honestly by an applicant who reasonably believes they did not withhold material information (Medel v Canada (Minister of Employment and Immigration)[1990] 2 FC 345Baro v Canada (Citizenship and Immigration)2007 FC 1299 (CanLII) at para 15, and Goudarzi v Canada (Citizenship and Immigration)2012 FC 425 (CanLII) at para 33). The Applicant submits that his response to the procedural fairness letter provided evidence that this exception applies to his alleged misrepresentation; he explained that the knowledge of the potential fraud was beyond his control and in his view he reasonably and honestly believed that he was not misrepresenting any material facts. Despite his response to the procedural fairness letter, the Applicant submits the Manager failed to consider whether any alleged misrepresentation was honestly and reasonably made.

[15]  The Respondent submits that the Applicant is merely “blaming” a third party for his misrepresentation and argues that efforts to get the original results were not before the decision-maker. The Respondent acknowledges that there is a “narrow exception” for innocent misrepresentation, but reiterates that it only applies in exceptional and narrow circumstance. The Respondent cites a line of jurisprudence for the proposition that misrepresentation made by a non-party to an application, without the applicant’s knowledge, does not save an application from an inadmissibility finding under section 40 of the IRPA. The Respondent also takes the position that the Applicant’s response to the procedural fairness letter did not meet the high standard to warrant such an exception.

[16]  I agree with the Applicant that the Manager failed to consider whether the Applicant honestly and reasonably believed he was not withholding material information.


MCJA Conference: Guest Speaker on Criminal Justice

On 9 November 2017, Alastair will be a Guest Speaker at the annual Manitoba Criminal Justice Association conference. Here is a description of the Association and its importance in criminal justice:

criminal justice

The Manitoba Criminal Justice Association (MCJA) is a provincial affiliate of the Canadian Criminal Justice Association (CCJA) and has been actively engaged in promoting crime prevention initiatives in Manitoba for over 40 years. It is an independent, community-based organization, governed by a Board of Directors which is comprised of citizens interested in achieving the objectives of the Association. The Manitoba Criminal Justice Association exists to promote rational, informed, and responsible debate in order to contribute to the development of a more humane, equitable, and effective justice system.

Alastair will be speaking on criminal justice issues and the rights of refugees. He regularly represents refugees at the IRB, Refugee Protection Division. He also represents clients at all levels of tribunal, as well as Federal Court on appeals. He also assists clients who have criminality issues who face Section 44 Reports from CBSA and foreign nationals who have criminal convictions and need a TRP to enter Canada. His talk will cover:

The talk is part of a larger series that includes many perspectives and we welcome any questions at the end of the presentation. Please note that Alastair cannot give any legal advice on any individual matters at the conference.

MCJA is currently still accepting new registrations which can be done through their website here.

Participants at the conference will have access to all materials provided by MCJA. The purpose of the workshop is to foster coordination between agencies and to make sure that refugees are provided with sound advice and resources to potentially establish themselves in Canada.

SCC Decision: Conditional Sentences

Today, the Supreme Court rendered an important decision on the rights of permanent residents with criminality issues. The Tran decision from Federal Court of Appeal was overturned and the highest court in Canada has held that “conditional” sentences from criminal court are not considered “imprisonment”. This has a huge impact on minor convictions where the Sentencing Judge have a conditional sentence to the offender. Those Permanent Residents were subject to harsh treatment by CBSA and, in turn, the tribunal and they faced deportation.

Here is a key section from the decision by Justice Côté, paragraphs 32 to 34:

If s. 36(1)(a) is interpreted such that a conditional sentence is a “term of imprisonment”, absurd consequences will follow. As previously mentioned, conditional sentences are “for less serious and non-dangerous offenders” (Proulx, at para. 21). Thus, more serious crimes may be punished by jail sentences that are shorter than conditional sentences imposed for less serious crimes ― shorter because they are served in jail rather than in the community. It would be an absurd outcome if, for example, “less serious and non-dangerous offenders” sentenced to seven-month conditional sentences were deported, while more serious offenders receiving six-month jail terms were permitted to remain in Canada. Public safety, as an objective of the IRPA  (s. 3(1) (h)), is not enhanced by deporting less culpable offenders while allowing more culpable persons to remain in Canada.

   It would also be absurd for offenders to seek prison sentences instead of conditional sentences so that they can remain in Canada, as Mr. Tran has done in this case. Conditional sentences are designed as an alternative to incarceration in order to encourage rehabilitation, reduce the rate of incarceration, and improve the effectiveness of sentencing (Proulx, at para. 20). These objectives would be sabotaged if individuals who are subject to conditional sentences sought to replace them with prison terms, thinking the latter to be their only path for a future in the Canadian communities from which incarceration would remove them.

For these reasons, the phrase “term of imprisonment” in s. 36(1) (a) of the IRPA  cannot, by either standard of review, be understood to include conditional sentences.

As noted above, the Tran decision from the FCA has caused harsh, even “absurd” consequences for our clients. We strongly agree with Justice Côté’s decision and this has had an immediate impact on one of our clients.

12 Month Conditional Sentence

Our client was given a 12 Month Conditional Sentence in Feb 2017 and his matter was referred to the Immigration and Refugee Board of Canada, Immigration Division. Based on the SCC Tran decision, he now has a good chance of staying in Canada with his Canadian children. His conditional sentence will now not be counted as “imprisonment” and, therefore, the SCC decision will have a strong positive impact on his case.

Congratulations to Peter and all the lawyers who worked on the Tran decision!