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Charter - s.32 Application

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

In Canadian Council for Refugees v. Canada (Citizenship and Immigration) (SCC, 2023) the Supreme Court of Canada considers the application (both geographical, and by the actuality and foreseeability of 'state action') of the Charter, here in a s.7 ['life, liberty and security of the person'] challenge to the 'third safe country' refugee scheme:
[84] The respondents rightly acknowledge that assessing the constitutional implications of effects that materialize in other countries does not amount to applying the Charter to foreign governments. Here, the challenge is directed at the legislative scheme, which is undoubtedly state action that attracts Charter scrutiny. There is no place in this analysis for assessing whether American laws, policies or actions themselves comply with the Charter. Canadian courts only consider deprivations “effected by actors other than our government, if there is a sufficient causal connection between our government’s participation and the deprivation ultimately effected” (Suresh, at para. 54). Canada cannot “avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand” (ibid.; see also Canada v. Schmidt, 1987 CanLII 48 (SCC), [1987] 1 S.C.R. 500, at p. 522; United States v. Burns, 2001 SCC 7, [2001] 1 S.C.R. 283, at paras. 59‑60; India v. Badesha, 2017 SCC 44, [2017] 2 S.C.R. 127, at para. 38). But the focus remains fixed on the Canadian legislative scheme and its effects.

....

[109] As noted above, to establish s. 7 engagement, challengers must not only demonstrate effects falling within the scope of the s. 7 interests, but also that these effects are caused by Canadian state action. In domestic matters, the requisite causal link will often be obvious. This is rarely so for cases where the deprivation in question is effected by foreign actors. When connecting harms to Canadian state action, courts must be “sensitive to the context of the particular case” (Bedford, at para. 76). When a challenger seeks to draw a causal connection between Canadian state action and a harm brought about by a foreign actor, the context is meaningfully different from cases in which harms arise through purely domestic processes.

[110] Canada has no jurisdiction to dictate the actions of foreign authorities. Thus, to draw a causal connection to Canadian state action, Canadian authorities must have been implicated in how the harms arose. Accordingly, challengers will succeed in drawing a causal connection to Canadian state action “[a]t least where Canada’s participation is a necessary precondition for the deprivation” (Suresh, at para. 54).

[111] Further, Canada cannot foresee all the actions that foreign authorities will take. Where there is no basis for Canada to have known that a harm would arise, it would be improper to view those harms as causally connected to Canadian state action. Thus, to draw a causal connection to Canadian state action, it must be shown that Canadian authorities knew, or ought to have known, that the harms could arise as a result of Canada’s actions. This has been expressed through the recognition that challengers will be able to show a causal connection to Canadian state action “[a]t least where . . . the deprivation is an entirely foreseeable consequence of Canada’s participation” (Suresh, at para. 54 (emphasis added)).

(a) Necessary Precondition

[112] In this case, it is clear that Canada’s participation is a necessary precondition to each of the effects related to detention and refoulement. Without the legislative implementation of the Safe Third Country Agreement regime, individuals could advance their refugee protection claims in Canada. Instead, they are sent back to the United States by Canadian officials acting under legislative authority, where they face (or are presumed to face) these effects. Thus, I have no hesitation in concluding that the relevant Canadian state action — here, s. 159.3 of the IRPR along with the broader legislative scheme — is a necessary precondition.

(b) Foreseeable Consequence

[113] In Bedford, this Court discussed the foreseeability threshold from Suresh and further explained its role (para. 77). Foreseeability, as described in Suresh, can be established “by a reasonable inference, drawn on a balance of probabilities” (Bedford, at para. 76). As is generally true, what is required is “a sufficient connection, having regard to the context of the case” (para. 78). Nevertheless, foreseeability remains useful in an international context where Canada does not necessarily have full knowledge of how foreign authorities will act (see, e.g., J. C. Hathaway, The Rights of Refugees Under International Law (2nd ed. 2021), at pp. 367‑68). To be plain, the foreseeability standard described in Suresh and interpreted in Bedford is binding on this Court.

[114] An effect can be shown to be foreseeable in at least two ways (see, e.g., Hathaway, at p. 373). First, challengers can show that Canada had actual knowledge of the risk that the effects would emerge. For example, Parliamentary debates discussing the risks may establish this knowledge. Second, challengers can also show that Canada ought to have known about the risks, such that knowledge can be imputed. Public reporting, academic analysis, and other sources originating outside government may help establish constructive knowledge. While speculation will not suffice, the threshold for constructive knowledge should remain attainable since foreseeability is a “port of entry for s. 7 claims” (Bedford, at para. 78). For example, the threshold should remain well below the strict approach taken to judicial notice (see R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at para. 48).

[115] In this case, the Federal Court judge noted the Suresh causation framework but did not explicitly consider whether each of the relevant effects was foreseeable (para. 100). She did not state what evidence could have allowed her to conclude that Canada knew, or ought to have known, that these effects would occur. In my respectful view, this approach led the Federal Court judge into reversible error in her application of the foreseeability standard this Court established in Suresh and Bedford.

[116] With respect to the cold temperatures in detention facilities, deficiencies in medical care, detention alongside criminally convicted individuals and the violation of religious dietary restrictions, the record does not support a finding that these effects were a foreseeable consequence of Canada’s actions on the Suresh and Bedford standard. While these effects are concerning, the question at this stage is whether Canada knew or ought to have known they could occur. The appellants have not pointed to evidence that would enable this Court to answer this question in the affirmative in light of the absence of findings below. They have not established that Canada either knew or ought to have known of this kind of harm arising in American detention facilities. Thus, in my respectful view, there was no basis for concluding that these effects were a foreseeable consequence.

[117] By contrast, the record substantiates that the other negative effects were entirely foreseeable. With respect to the risk of detention, it is plain that Canada knew returnees would be exposed to such a risk. From the earliest consultations on the scope of a possible safe third country agreement, the use of detention in the United States was the subject of debate and study (see, e.g., UNHCR, UNHCR Comments on the Draft Agreement between Canada and the United States of America for “Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries”, July 26, 2002 (online), at p. 3). Similarly, the “one-year bar” and the treatment of gender-based claims were each focal points during the adoption of the agreement (see, e.g., p. 2; Regulatory Impact Analysis Statement, SOR/2004‑217, Canada Gazette, Part II, vol. 138, No. 22, November 3, 2004, at p. 1627). Further, Canada ought to have known that returnees were at risk of being subjected to the widespread practice of medical isolation. These infringements of liberty and security of the person are causally connected to Canadian state action and must be assessed in relation to the principles of fundamental justice.
. Canada v. Boloh 1(a)

In Canada v. Boloh 1(a) (Fed CA, 2023) the Federal Court of Appeal considers the geographical application of the Charter:
[55] In any event, the Charter and all of the sections the respondents invoke do not apply. Canadian state conduct did not lead to the respondents being in northeastern Syria, did not prevent them from entering Canada, and did not cause or continue their plight. The respondents’ own conduct and persons abroad who have control over them alone are responsible. In no way is the Government of Canada infringing the respondents’ right to liberty nor on these facts is it violating a principle of fundamental justice (section 7), arbitrarily detaining the respondents (section 9), inflicting cruel and unusual punishment on them (section 12) or discriminating against them (section 15). To the extent these rights are being infringed, entities other than the Government of Canada are responsible.

[56] Further, the application of the Charter in this case would be extraterritorial and invalid. True, sometimes the Charter can apply to circumstances outside of Canada: see e.g., Canada (Prime Minister) v. Khadr, 2010 SCC 3, [2010] 1 S.C.R. 44. But for that to happen, there must be some action or involvement by the Government of Canada to attract the application of the Charter. In particular, there must be either evidence of "“Canadian participation in a process that violates Canada’s international law obligations”" or "“consent by the foreign state to the application of Canadian law”": R. v. McGregor, 2023 SCC 4 at para. 18; see also R. v. Hape, 2007 SCC 26, [2007] 2 S.C.R. 292 at paras. 51-52 and 101 and Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125 at paras. 18-19. Neither is present here.

[57] As the Federal Court found, there is no evidence of Canadian participation or contribution to the respondents’ plight. A foreign state has not consented to the application of Canadian law. Instead, the respondents’ plight stems from foreign causes and the actions or omissions of the Autonomous Administration of North and East Syria, the Syrian Democratic Forces, or both. Thus, in this case, the Charter does not apply.
. R. v. McGregor

In R. v. McGregor (SCC, 2023) the Supreme Court of Canada considered the s.32 'application' provision of the Charter, here in light of it's extra-territorial jurisdiction:
[18] The starting point of the analysis is the text of the Constitution. The scope of application of the Charter is delineated in s. 32(1):
32 (1) This Charter applies

(a) to the Parliament and government of Canada in respect of all matters within the authority of Parliament including all matters relating to the Yukon Territory and Northwest Territories; and

(b) to the legislature and government of each province in respect of all matters within the authority of the legislature of each province.
This Court’s decision in Hape is the governing authority on the territorial reach and limits of the Charter under s. 32(1). Under the Hape framework, the Charter generally cannot apply to Canadian authorities involved in an investigation conducted abroad. This general rule is qualified by two exceptions: (1) consent by the foreign state to the application of Canadian law (para. 106); and (2) Canadian participation in a process that violates Canada’s international law obligations (paras. 51‑52 and 101; see also Canada (Justice) v. Khadr, 2008 SCC 28, [2008] 2 S.C.R. 125, at paras. 18‑19).



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Last modified: 17-06-23
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