Judicial review of Crown prerogatives — jurisdiction of federal courts — justiciability or political questions doctrine

Hupacasath First Nation v Canada (Foreign Affairs and International Trade Canada), 2015 FCA 4 (9 January 2015). Federal Court of Appeal.

The appellant, a British Columbia (BC) First Nation and band under the Indian Act, challenged the decision of the minister of foreign affairs to negotiate and conclude a Canada–China investment treaty without first consulting it and, if necessary, accommodating it as required by such well-known Aboriginal law decisions as Haida Nation v British Columbia (Minister of Forests) and Rio Tinto Alcan Inc v Carrier Sekami Tribal Council. ^{Footnote 1} The band argued that the investment treaty might affect its Aboriginal rights and interests in BC lands. At trial in the Federal Court before Crampton CJ, the treaty was found not to be a potential threat to the band’s asserted rights and interests. The trial judge found that any effect on the band was “non-appreciable” and “speculative.” ^{Footnote 2}

The band appealed that finding to the Federal Court of Appeal. In oral argument, the court invited the parties to make submissions on a second issue, namely whether the federal courts have jurisdiction to review exercises of prerogative power such as the negotiation and conclusion of international agreements. In responding to that invitation, Canada raised a new defence to the band’s claim, namely that the federal Crown’s exercise of a prerogative power is non-justiciable. The treaty at issue came into force between Canada and China while the decision of the Federal Court of Appeal was under reserve.

Justice Stratas for the Federal Court of Appeal affirmed the federal courts’ jurisdiction, rejected Canada’s non-justiciability argument, and dismissed the band’s appeal. On the issue of the federal courts’ jurisdiction, Stratas JA began by noting that, in principle, exercises of pure Crown prerogatives can be judicially reviewed. ^{Footnote 3} That was not the issue. The question was whether that power rests only with provincial superior courts, by virtue of their inherent jurisdiction, or was also accorded to the federal courts under sections 2(1) and 18.1(3) of the Federal Courts Act. ^{Footnote 4} The only appellate authority on that question, namely the decision of the Court of Appeal for Ontario in Black v Canada (Prime Minister), held that the federal courts lacked the power to review exercises of the prerogative. ^{Footnote 5} The Federal Court of Appeal was not bound by Black, however, and considered its correctness for itself.

Section 18.1(3) of the Federal Courts Act empowers the Federal Court to review a “federal board, commission or other tribunal.” Section 2(1) defines that phrase to mean “any body, person or persons having, exercising or purporting to exercise jurisdiction or powers conferred by or under an Act of Parliament or by or under an order made pursuant to a prerogative of the Crown.” The decision of the Governor in Council to authorize the Minister of Foreign Affairs to ratify the Canada–China investment treaty was founded on a pure Crown prerogative. Was this act a power conferred “by or under an order made pursuant to a prerogative of the Crown”? Stratas JA held that section 2(1) could plausibly bear both the narrow reading given to it in Black and a broader reading whereby a power conferred “by … a prerogative of the Crown” can be reviewed by the federal courts. ^{Footnote 6} Furthermore, the Supreme Court of Canada’s admonitions against narrowing the jurisdiction of the federal courts and finding gaps in the Federal Courts Act supported a purposive interpretation of that Act in keeping with the federal courts’ general administrative, supervisory jurisdiction over all federal decision makers. ^{Footnote 7} Stratas JA concluded that to deny the federal courts jurisdiction would be to advance a technical distinction that serves only to trap the unwary and obstruct access to justice. ^{Footnote 8}

The learned judge then turned to the question of justiciability. In a rare case of the doctrine being considered in a Canadian court, Stratas JA observed that justiciability, sometimes called the political questions doctrine, concerns the appropriateness and ability of a court to deal with an issue before it. ^{Footnote 9} He observed:

Here, the allegedly non-justiciable issue was Canada’s decision to conclude an investment treaty with China. Stratas JA approved the English decision of R v Secretary of State for Foreign and Commonwealth Affairs, Ex parte Everett suggesting that executive decisions to sign a treaty, without more, are not justiciable. ^{Footnote 11} “This makes sense,” observed the learned judge, “as the factors underlying a decision to sign a treaty are beyond the courts’ ken or capability to assess, and any assessment of them would take courts beyond their proper role within the separation of powers.” ^{Footnote 12} Yet Stratas JA concluded that the appellant’s challenge here was not to the executive’s decision to sign the treaty but, rather, “to bring the Agreement into effect” in spite of the band’s enforceable legal rights to be consulted beforehand. Assessing whether or not the band has such legal rights is not non-justiciable; to the contrary, it “lies at the core of what courts do.” ^{Footnote 13}

Having rejected Canada’s justiciability objection, Stratas JA went on to review the merits of the decision and dismiss the band’s appeal, essentially for the reasons of Crampton CJ. In particular, Stratas JA noted that there was no evidence that Canada’s other foreign investment promotion and protection agreements have impaired the ability of any level of government to protect Aboriginal rights and interests or the rights and interests themselves. ^{Footnote 14}

Freedom of association — right to strike — relevance of international law to interpretation of the Canadian Charter of Rights and Freedoms

Saskatchewan Federation of Labour v Saskatchewan, 2015 SCC 4 (30 January 2015). Supreme Court of Canada.

In this appeal, the Supreme Court of Canada recognized the right to strike as an aspect of freedom of association constitutionally protected by section 2(d) of the Canadian Charter of Rights and Freedoms. ^{Footnote 15} This innovation was prompted by a Saskatchewan law, the Public Service Essential Services Act, which limited strike action by certain public sector employees who were designated as performing essential services. ^{Footnote 16} The constitutionality of this law was challenged by the Saskatchewan Federation of Labour and other unions. The trial judge concluded that the right to strike was a fundamental freedom protected by section 2(d) of the Charter and that the prohibition on the right to strike substantially interfered with the section 2(d) rights of the affected public sector employees in a manner that was not saved by section 1 of the Charter. The Saskatchewan Court of Appeal allowed the government of Saskatchewan’s appeal on this point.

Justice Rosalie Abella for herself and four others allowed the appeal and affirmed that “the right to strike is an essential part of a meaningful collective bargaining process in our system of labour relations” and that this conclusion was supported “by history, by jurisprudence and by Canada’s international obligations.” ^{Footnote 17} The prohibition on striking for essential service employees, and the lack of any legislative mechanism in the place of striking where collective bargaining reaches an impasse, rendered the Saskatchewan law unconstitutional. ^{Footnote 18} After a review of Canadian jurisprudence under section 2(d), the history of strike actions in English and Canadian law since the nineteenth century, and the Wagner Act model of labour relations as adopted in Canada in the twentieth century, Abella J concluded that “the ability of employees to withdraw their labour in concert has long been essential to meaningful collective bargaining.” ^{Footnote 19}

The learned judge then turned to Canada’s international human rights obligations, which, in her view, “mandate protecting the right to strike as part of a meaningful process of collective bargaining” and “clearly argue for the recognition of a right to strike within s. 2(d).” ^{Footnote 20} In support of this conclusion, Abella J relied chiefly on Article 8(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Article 45(c) of the Charter of the Organization of American States (OAS Charter). ^{Footnote 21} She also cited the International Labour Organization’s (ILO) Convention no. 87 Concerning Freedom of Association and Protection of the Right to Organize, which, she acknowledged, “does not explicitly refer to the right to strike.” ^{Footnote 22} She noted, however, that the ILO supervisory bodies, including the Committee on Freedom of Association, have recognized the right to strike in their decisions, which, in Abella J’s view, “have considerable persuasive weight.” ^{Footnote 23} Finally, Abella J described “an emerging international consensus that, if it is to be meaningful, collective bargaining requires a right to strike.” ^{Footnote 24} The learned judge cited decisions of the European Court of Human Rights, German and Israeli authorities, the constitutional provisions of France, Italy, Spain, and South Africa, and Article 6(4) of the European Social Charter. ^{Footnote 25}

Of potential importance for the development of Charter jurisprudence more generally, Abella J invoked the presumption, first enunciated by Chief Justice Brian Dickson in dissent in Reference re Public Service Employee Relations Act (Alta), that “the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified.” ^{Footnote 26} The learned judge cited R v Hape and Divito v Canada (Public Safety and Emergency Preparedness) in support of this presumption. ^{Footnote 27}

Abella J then enunciated the following test for an infringement of section 2(d)’s protection of the right to strike: does the legislative interference with the right to strike in a particular case amount to a substantial interference with collective bargaining? ^{Footnote 28} If so, the impugned provision must be justified under section 1 to avoid unconstitutionality. Having found that the Saskatchewan law does substantially interfere with collective bargaining, Abella J moved on to the justification analysis. At the minimal impairment stage, she returned to Canada’s international obligations, quoting with approval an expert report admitted at trial that opines on the circumstances in which states may, consistently with international instruments and jurisprudence, restrict or prohibit the right to strike. ^{Footnote 29} She noted that the ILO’s Committee on Freedom of Association defined essential services as those needed to prevent a “clear and imminent threat to the life, personal safety or health of the whole or part of the population.” ^{Footnote 30} In contrast to these international authorities and also to similar Canadian schemes, the trial judge had found the Saskatchewan law not to be minimally impairing of the right to strike as protected by section 2(d) of the Charter. Justice Abella agreed.

The co-written dissent of Justices Marshall Rothstein and Richard Wagner is a vigorous refutation of the majority’s position, based in significant part on what it describes as the “unclear” state of international law on the right to strike. ^{Footnote 31} The dissenting justices noted that Convention no. 87 does not refer to the right to strike and that ILO bodies disagree on the interpretation of that treaty. ^{Footnote 32} They also observed that the right to strike is not expressly protected by the International Covenant on Civil and Political Rights (ICCPR) and that the UN Human Rights Committee has found that Article 22 of that covenant does not protect that right. ^{Footnote 33} As for the ICESCR, the dissenting justices observed that it “protects a qualified right to strike … subject to explicit restrictions as it applies to public sector workers.” ^{Footnote 34} The dissenting justices did not consider the OAS Charter provisions relied upon by the majority.

On the question of the relative significance of international sources for domestic interpretive purposes, the dissenting justices invoked the Court’s prior jurisprudence in support of the propositions that “obligations under international law that are binding on Canada are of primary relevance to this Court’s interpretation of the Charter” and that “[w]hile other sources of international law can have some persuasive value in appropriate circumstances, they should be granted much less weight than sources under which Canada is bound.” ^{Footnote 35} As for foreign constitutions, the dissenting judges considered them to be of little relevance and, indeed, as supporting the view that Canada intended to exclude the right to strike from the Charter. ^{Footnote 36} The dissenting judges cautioned that “[j]udicial review and the use of international law as an interpretive aid should not become a euphemism for this Court interfering in the government’s prerogative over foreign affairs.” ^{Footnote 37}

State immunity — act of state doctrine — improper interference in labour relations

United Mexican States v British Columbia (Labour Relations Board), 2015 BCCA 32 (30 January 2015). Court of Appeal for British Columbia.

The United Mexican States and the Consulado General de Mexico en Vancouver (Mexico) appealed the dismissal of its judicial review petition of a decision of the British Columbia Labour Board. In the course of an application before the board to decertify a union as the bargaining agent for a group of agricultural workers, the board found that Mexico had improperly interfered with a representation vote for the purposes of section 33(6)(b) of the BC Labour Relations Code. ^{Footnote 38} In so doing, the board rejected Mexico’s argument that state immunity prevented it from considering and making findings regarding Mexico’s conduct.

The union was the certified bargaining agent for workers employed by a BC agricultural nursery and farming business that employed Mexican workers (and others) through the federal government’s Seasonal Agricultural Workers Program. Certain employees applied to the board to decertify the union. In response, the union filed a complaint against Mexico alleging that it had engaged in unfair labour practices and improper interference contrary to the Labour Relations Code. The union alleged that Mexico prevented workers who supported the union from returning to Canada or from working in unionized workplaces. ^{Footnote 39}

Mexico raised state immunity as a preliminary objection, claiming that section 3(1) of the State Immunity Act precluded the board from considering the union’s allegation. ^{Footnote 40} On this basis, the board dismissed the union’s unfair labour practices complaint. But it held that it could consider Mexico’s conduct in connection with the alleged improper interference. The union then advised the board that it intended to call former consular employees of Mexico to give testimony. Mexico resisted based both on state immunity and on the Vienna Convention on Consular Relations. ^{Footnote 41} The board ultimately ruled that it was neither precluded from hearing the voluntary testimony of former consular employees nor from making findings as to whether Mexico’s conduct amounted to improper interference within the meaning of the Labour Relations Code. ^{Footnote 42}

On judicial review to the Supreme Court of British Columbia, the chambers judge held that the board was not exercising jurisdiction over Mexico contrary to section 3(1) of the State Immunity Act as Mexico was not a party to the proceedings and no orders or findings could be made against it. She also held that the Vienna Convention on Consular Relations did not prevent the board from hearing the evidence, voluntarily given, of former consular employees. The learned judge noted that a finding of improper interference under section 33(6)(b) of the Labour Relations Code was “merely a basis upon which the Board may dismiss a decertification application without regard for the result of a representation vote and does not constitute a finding that the Code has been violated … There is no legal consequence for any other person who is found to have improperly interfered.” ^{Footnote 43} Given this, the chambers judge held that the State Immunity Act did not preclude the board from inquiring into or making findings relating to whether Mexico had engaged in improper interference.

Harris JA for the Court of Appeal for British Columbia dismissed Mexico’s appeal. He agreed with the chambers judge that a finding of improper interference for the purpose of section 33(6)(b) of the Labour Relations Code is not a finding that the code has been violated but is simply a basis on which the board can conclude that a representation vote does not disclose the true wishes of the employees. No order can be made against a person found to have improperly interfered. The finding has no legal effect and does not affect the person’s legal interests. ^{Footnote 44}

On the issue of state immunity, Harris JA agreed with the chambers judge’s analysis, noting a recent English case, Belhaj v Straw, in which the chambers judge’s decision had been cited. ^{Footnote 45} In Belhaj, the Court of Appeal for England and Wales distinguished between state immunity and the act of state doctrine. That doctrine, explained Harris JA, “may confer a subject matter immunity that will lead a court to decline to adjudicate matters involving the sovereign acts of foreign states even in circumstances where there is no state immunity.” ^{Footnote 46} But Harris JA agreed with the court in Belhaj that proceedings will not be barred on grounds of state immunity simply because they require a court to rule on the legality of a foreign state’s conduct. Harris JA quoted approvingly from Belhaj as follows:

Harris JA agreed with this analysis and observed that Mexico’s position was truly not one of state immunity but, rather, an act of state. Yet he saw no need to consider the scope or content of that doctrine, being unpersuaded that it had any application to the facts of the case before him. “The Board,” in his view,

The court dismissed the appeal.

Leave to intervene — presumption of conformity with international law — international law and judicial review

Gitxaala Nation v R, 2015 FCA 73 (16 March 2015). Federal Court of Appeal.

In litigation arising from the Northern Gateway Pipeline Project, Amnesty International and the Canadian Association of Petroleum Producers applied for leave to intervene. Stratas JA for the Federal Court of Appeal granted the applications on terms and, in so doing, gave guidance on how would-be interveners should proceed in cases where questions of public international law arise.

Stratas JA framed his analysis according to the test for intervention in Federal Court of Appeal proceedings set out in Canada (Attorney General) v Pictou Landing First Nation, ^{Footnote 49} a test based on the older authority of Rothmans, Benson & Hedges Inc v Canada (Attorney General). ^{Footnote 50} This test requires, in short, that (1) the applicable procedural requirements be met; (2) the proposed intervener have a genuine interest in the matter; (3) the proposed intervener advance different and valuable insights; (4) it be in the interests of justice to permit the intervention; and (5) the intervention be consistent with Rule 3 of the Federal Courts Rules, which requires that the rules be interpreted and applied so as to secure the just, most expeditious, and least expensive determination of every proceeding on its merits. The issue in both proposed interventions, in Stratas JA’s view, lay in the third and fourth elements of this test.

Amnesty International’s application offered the court an international law perspective on the issues before it. “A reading of its memorandum suggests that international law is very much at large on all issues in many different ways,” observed Stratas JA. That was, in the learned judge’s view, incorrect. Rather, international law potentially affected the issues before the court “in only limited ways.” ^{Footnote 51} Stratas JA then offered this account of the relationship between international and domestic law in Canada:

Aspects of this depiction of the reception and role of public international law in contemporary Canadian law are, with respect, outdated. While Pigeon J (for himself alone) did indeed describe the presumption of conformity as “seldom applied” in 1968, whatever truth that statement may have held at the time has been worn away since by repeated endorsements and applications of the presumption by the Supreme Court of Canada. ^{Footnote 53} Furthermore, Stratas JA’s account of the need for ambiguity before applying the presumption of conformity overlooks the Supreme Court of Canada’s important qualification of the ambiguity requirement in National Corn Growers Assn v Canada (Import Tribunal) and is at odds with the Court’s current practice. ^{Footnote 54}

The learned judge’s comments immediately following the above-quoted passage strike a rather different note:

Here Stratas JA hesitantly embraced (if I may borrow the phrase) ^{Footnote 56} a potentially significant place for international law in Canadian judicial review. The approach suggested here would appear to be consistent with the majority decision in Baker v Canada (Minister of Citizenship and Immigration), although it is arguable that the Supreme Court has not yet gone as far as Stratas JA here allows. ^{Footnote 57}

Having made these observations, Stratas JA concluded that while it was “a close call” he would exercise his discretion to allow Amnesty International leave to intervene “on terms, primarily because of its expertise in international law issues and the potential that international law issues may be relevant, albeit in limited ways.” ^{Footnote 58} The terms imposed were that Amnesty

So long as the concept of ambiguity is applied in keeping with National Corn Growers, these terms are not only reasonable but represent good practice for any counsel making submissions on a point of international law before a Canadian court or tribunal.

Freedom of religion — religious education — relevance of international law to interpretation of Canadian Charter of Rights and Freedoms

Loyola High School v Quebec (Attorney General), 2015 SCC 12 (19 March 2015). Supreme Court of Canada.

The mandatory curriculum in Quebec schools from September 2008 required a program that taught students about the beliefs and ethics of world religions from a neutral and objective perspective. A private Catholic high school sought an exemption from this requirement on grounds of religious freedom and was refused. It challenged that refusal by judicial review of the minister’s decision.

The decision of the Supreme Court of Canada did not address international legal issues at length, yet the references to religious freedom in international human rights law were notable. Abella J for the majority of the Court overturned the minister’s refusal of the high school’s objection and sent the matter back to the minister for reconsideration. In doing so, the learned judge applied the framework for reviewing discretionary administrative decisions involving Charter rights propounded in Doré v Barreau du Québec. ^{Footnote 60} In the course of this analysis, Abella J quoted Article 18(4) of the ICCPR, noting that it “protects the rights of parents to guide their children’s religious upbringing.” ^{Footnote 61}

In separate reasons, Chief Justice Beverley McLachlin and Justice Michael Moldaver (with Rothstein J’s concurrence) concurred that the appeal should be allowed but preferred to grant the exemption sought rather than send the matter back to the minister. In reaching this result, the concurring judges applied a traditional Charter analysis rather than the Doré approach. In particular, they held that the Charter should be presumed to provide at least as great a level of protection as is found in the international human rights documents that Canada has ratified. Thus, the collective aspect of freedom of religion recognized in Article 18 of the Universal Declaration of Human Rights (as well as in Article 9 of the Convention for the Protection of Human Rights and Fundamental Freedoms and Article 18 of the ICCPR) should, in their view, find protection under the Charter. ^{Footnote 62}

Wrongful conviction — Charter damages — relevance of international law to interpretation of Canadian Charter of Rights and Freedoms

Henry v British Columbia (Attorney General), 2015 SCC 24 (1 May 2015). Supreme Court of Canada.

The appellant, Ivan Henry, served almost twenty-seven years in jail on ten convictions for sexual offences. In October 2010, all of his convictions were quashed and substituted with acquittals by the Court of Appeal for British Columbia on the basis of serious errors in the conduct of the trial and the unreasonableness of the guilty verdicts in light of the evidence as a whole. Henry later sued the Attorney General of British Columbia for damages for violations of his constitutional rights under section 24(1) of the Charter (“[a]nyone whose rights or freedoms … have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances”). Henry contended that the Crown had failed to make full disclosure of relevant information prior to, during, and after his trial. This information included victim statements, forensic evidence, and the existence of another suspect.

The attorney general moved to strike Henry’s claim for Charter damages. The application judge rejected the application, holding that malice was not a necessary element of a plea for Charter damages. The Court of Appeal allowed the Crown’s appeal and held that Henry could not seek Charter damages for non-malicious acts and omissions of Crown counsel.

Moldaver J for the majority of the Supreme Court of Canada allowed Henry’s appeal. The learned judge held that section 24(1) of the Charter permits damages awards against the Crown for prosecutorial misconduct even without proof of malice. However, the claimant must show that the Crown, in breach of its constitutional obligations, caused harm to the accused by intentionally withholding information when it knew, or would reasonably be expected to know, that the information was material to the defence and that failure to disclose it would likely impinge on the accused’s ability to make full answer and defence. This standard of proof is lower than malice but remains a high threshold so as to strike a reasonable balance between remedying serious rights violations and maintaining the efficient operation of the public prosecution system. As Moldaver J’s reasons did not address issues of public international law, I need not review them further.

The joint concurring reasons of McLachlin CJ and Justice Andromache Karakatsanis set a lower threshold for proof of a Charter damages claim, a result the learned judges justified in part by resort to international human rights law. In the concurring judges’ view, Henry was not required to allege that the Crown breached its constitutional obligations to him either maliciously or intentionally. He need only plead facts that, if true, proved a breach of his Charter rights and that damages are an appropriate and just remedy to advance the purposes of compensation, vindication, or deterrence. McLachlin CJ and Karakatsanis J emphasized that prosecutors have a legal duty to disclose relevant evidence, and, therefore, concerns about chilling the exercise of prosecutorial discretion were misplaced. They found “no principled basis for imposing any threshold of fault or intention on Mr. Henry’s claim for Charter damages.” ^{Footnote 63}

This result, in the concurring judges’ view, was both right in law and justice and consistent with Canada’s international obligations. They noted that Canada had “committed itself internationally to compensating those who have been wrongfully convicted” by ratifying the ICCPR, Article 14(6) of which provides:

While Parliament had not “passed legislation to implement this obligation domestically,” and, therefore, Article 14(6) was not “directly enforceable in Canadian courts,” the Supreme Court of Canada “has stated many times that the Charter should be interpreted consistently with Canada’s international obligations,” most recently in Saskatchewan Federation of Labour (noted above). ^{Footnote 65} The concurring judges continued:

Citizenship — statelessness — prematurity

Budlakoti v Canada (Citizenship and Immigration), 2015 FCA 139 (4 June 2015). Federal Court of Appeal.

The appellant was born in Canada to Indian nationals in 1989. His parents were employees of India’s High Commission. In 1992, all three were granted permanent resident status in Canada. In 1995, the appellant’s parents applied for citizenship, which they eventually obtained. For unclear reasons, no citizenship application was made on the appellant’s behalf, with the result that he was never granted it. He was, however, eventually issued a Canadian passport.

The appellant was convicted of breaking and entering in 2009 and of weapons trafficking, possession of a firearm while prohibited, and narcotics trafficking in 2010. The minister of citizenship and immigration later determined that the appellant was not a citizen and applied to the Immigration and Refugee Board for an order permitting him to remove the appellant from Canada on grounds of serious criminality. Before the board, the appellant argued that his parents were not employees of the Indian High Commission at the time of his birth, with the result that he acquired Canadian citizenship by birth. The minister disputed this, relying on section 3(2)(a) of the Citizenship Act (which bars the acquisition of citizenship by birth in Canada to persons one or both of whose parents was a diplomatic or consular officer or other representative or employee in Canada of a foreign government). ^{Footnote 67} The board found as a fact that his parents were still employed by the High Commission at the time of his birth. He was therefore not a citizen, and the removal order became effective.

In March 2013, India advised the minister that it would not issue the appellant a travel document because it did not recognize him as an Indian national. In September 2013, the appellant applied to the Federal Court for a declaration that he is a Canadian citizen. The Federal Court dismissed the application. Stratas JA for the Federal Court of Appeal dismissed the appellant’s appeal. He began by noting that the fact that the appellant had once been issued a Canadian passport was not determinative of his citizenship. ^{Footnote 68}

He then observed that while the appellant was not, at present, recognized as a citizen of any country, he was nevertheless not stateless in the international law sense. According to the learned judge, under Article 1 of the Convention on the Reduction of Statelessness, a person is stateless “only where the person does not have national status or citizenship in Canada and the person is ‘otherwise stateless’ — i.e., as a legal or practical matter the person cannot get citizenship of national status elsewhere.” ^{Footnote 69} Given that the appellant still had avenues before him to obtain citizenship either in India or Canada, he was “not yet stateless.” ^{Footnote 70}

Stratas JA accepted the minister’s submission that the appellant’s application was premature given that he had not yet applied for citizenship either in India or Canada. While Canada had declared him inadmissible as a permanent resident for serious criminality, it had not yet received or considered his application for citizenship. Likewise India did not yet have the question before it, and the evidence did not show any legal or practical obstacle to his acquiring citizenship there. ^{Footnote 71} Stratas JA added that, in the event that the minister refused the appellant’s application for citizenship on grounds of “special and unusual hardship” under section 5(4) of the Citizenship Act, he could invoke the Convention on the Reduction of Statelessness as a matter the minister should consider. ^{Footnote 72}

Stratas JA concluded that the appellant had impermissibly bypassed the administrative scheme established by Parliament under the Citizenship Act for determining issues of citizenship. He dismissed the appeal, while expressly declining to express any views on the merits of any future citizenship application the appellant might make or any judicial review proceedings that might follow. ^{Footnote 73}

Diplomatic immunity — frozen embassy bank accounts — Vienna Convention on Diplomatic Relations

Canadian Planning and Design Consultants Inc v Libya, 2015 ONCA 661 (29 September 2015). Court of Appeal for Ontario.

This case arose from enforcement proceedings between a Canadian creditor and the state of Libya. It raised important and interesting questions about the availability for execution by judgment creditors of a foreign state’s funds held in a Canadian bank account, the legal significance of certificates issued by the minister of foreign affairs to the effect that a bank account is used by a foreign state for diplomatic purposes and whether an agreement to submit to arbitration under the International Chamber of Commerce Rules of Arbitration waives a state’s immunity from enforcement of a resulting arbitral award. In this judgment, however, all these questions were deemed premature by the Court of Appeal for Ontario and therefore left unanswered pending further proceedings in the court below.

The decision is nevertheless of interest for the following point. On a motion in the Ontario Superior Court, the chambers judge quashed certain notices of garnishment the creditor had obtained and restrained it from further enforcement against Libya’s bank account on the basis of diplomatic immunity. That order was then stayed by a judge of the Court of Appeal in chambers, who observed: “If a stay is not granted, there is a real risk that the bank accounts will be emptied and the funds transferred elsewhere.” ^{Footnote 74} Having adjourned the creditor’s appeal pending further proceedings below, the Court of Appeal had to dispose of the stay order. Libya and its bank opposed the continuation of the stay order on the basis that the court should presume that freezing Libya’s bank accounts impaired its ability to continue to operate its embassy. The Attorney General of Canada also opposed the continuation of the stay, arguing that it would breach Canada’s obligation “to accord full facilities for the performance of the functions of a mission” under Article 25 of the Vienna Convention on Diplomatic Relations. ^{Footnote 75}

The Court of Appeal nevertheless continued the stay. It held that “the impairment of embassy operations as a consequence of the freezing of its bank accounts is not a fact that is capable of judicial notice and cannot be presumed by the court.” Having no evidence that Libya’s ability to operate its embassy had been adversely affected by the notices of garnishment or the stay order, it could not find that a continuation of that order would violate Canada’s obligations under Article 25 of the Vienna Convention on Diplomatic Relations. ^{Footnote 76} The court also agreed with the creditor that it would suffer irreparable harm if the stay order were not continued.

Refugee protection — human smuggling — financial or material benefit

B010 v Canada (Citizenship and Immigration), 2015 SCC 58 (27 November 2015). Supreme Court of Canada.

This appeal involved five appellants who sought to apply for refugee status from within Canada but had been declared inadmissible, and therefore ineligible for consideration of the merits of their claims, on the ground of people smuggling. Four of the appellants were Sri Lankan passengers aboard the Sun Sea, a cargo ship from Thailand. The other appellant was a Cuban who had transported other Cubans to the United States and was convicted there for alien smuggling.

At the relevant time, section 37(1)(b) of the Immigration and Refugee Protection Act (IRPA) provided:

The issue before the Supreme Court of Canada was whether this provision captures anyone who assists another in illegally entering Canada or is limited to those who further the illegal entry of asylum seekers for a financial or other material benefit.

McLachlin CJ for the unanimous Court began by observing that the courts below had differed on the standard of review applicable to decisions of the Immigration and Refugee Board on questions of statutory interpretation involving consideration of international instruments. The chief justice noted that the presumptive standard of review, the IRPA being the board’s home statute, was reasonableness. The question was whether that presumption was displaced. The chief justice saw no need to resolve the issue, concluding that the board’s interpretation of section 37(1)(b) was not within the range of reasonable interpretations. ^{Footnote 78}

Turning to the merits, McLachlin CJ observed that the range of conduct captured by section 37(1)(b) of the IRPA is a matter of statutory interpretation. She proceeded with an extensive interpretive exercise structured around the modern rule of statutory interpretation. Beginning with the words of the provision read in their ordinary and grammatical sense, she found that the phrase “transnational crime” could not be read as including non-organized individual criminality. The ordinary and grammatical sense of the provision suggested that it applies to acts of illegally bringing people to Canada when those acts are connected to transnational organized criminal activity. ^{Footnote 79}

McLachlin CJ then considered the provision’s statutory context. The provision, read in the light of section 37(1) as a whole, was focused on organized criminal activity. Subsection 37(1) introduces the concept of inadmissibility on grounds of “organized criminality.” This phrase is logically and linguistically related to the concept of “criminal organization” as defined in section 467.1(1) of the Criminal Code. ^{Footnote 80} This definition expressly requires that the commission of offences by groups be for a financial or other material benefit. The concepts of “organized criminality” in section 37(1) of the IRPA and “criminal organization” in section 467.1(1) of the Criminal Code should be given a consistent interpretation. This conclusion is strongly supported by the fact that both provisions were enacted in anticipation of Canada’s obligations under the United Nations Convention against Transnational Organized Crime (Palermo Convention). ^{Footnote 81} The apparent similarity between the provisions of the IRPA and the Criminal Code was no coincidence. ^{Footnote 82}

Continuing her statutory interpretation exercise, McLachlin CJ turned to the international context of section 37(1)(b). Her reasons at this point merit extensive quotation:

Having thus explained the basis for considering the relevant international instruments, the chief justice considered in turn the Palermo Convention and its protocols, the Refugee Convention, and the role of the “financial or other material benefit” requirement in these instruments. She began by observing that, “[i]n addition to the international context of Canadian legislation generally, and of the IRPA in particular, s. 37(1)(b) finds its origin in international law, namely the Palermo Convention and the related Smuggling Protocol.” ^{Footnote 84} She noted the “key distinction” between the Smuggling Protocol and the Human Trafficking Protocol, namely that the former applies to cases where the smuggler and smuggled agree and the latter applies to cases of coercion. ^{Footnote 85} The chief justice concluded that section 37(1)(b)’s express mention of people smuggling, trafficking in persons, and money laundering refer to the Palermo Convention and its two protocols. ^{Footnote 86}

McLachlin CJ then considered the Refugee Convention, in particular, its prohibition on penalizing asylum seekers on the basis of how they sought or secured entry into the country. ^{Footnote 87} Obstructed or delayed access to the refugee process, she concluded, is such a prohibited penalty. Section 37(1)(b) must be read consistently with the Refugee Convention. ^{Footnote 88} Taking the Palermo Convention, the Smuggling Protocol, and the Refugee Convention together, the chief justice found support for the view that “people who are not themselves members of criminal organizations, who do not act in knowing furtherance of a criminal aim of such organizations, or who do not organize, abet or counsel serious crimes involving such organizations, do not fall within s. 37(1)(b).” ^{Footnote 89}

The final stage in McLachlin CJ’s statutory interpretation exercise was to read section 37(1)(b) harmoniously with the intention of Parliament, which she derived not only from the considerations already discussed (the wording, the legislative scheme, and the context) but also from the Parliamentary record. She found “no evidence that Parliament sought to ignore” the distinction between “those who act for financial or material benefit and those who act for humanitarian purposes or give mutual assistance.” ^{Footnote 90} To the contrary, she found positive evidence that Parliament understood “people smuggling” in the sense that “migrant smuggling” is used in the Smuggling Protocol.

McLachlin CJ therefore concluded that to justify a finding of inadmissibility against the appellants on the grounds of people smuggling under section 37(1)(b), they must be shown to have procured a person’s illegal entry in order to obtain, directly or indirectly, a financial or other material benefit in the context of transnational crime. The appellants could escape inadmissibility if they “merely aided in the illegal entry of other refugees or asylum-seekers in the course of their collective flight to safety.” ^{Footnote 91} The appeals were allowed and the cases remitted to the board for reconsideration.

Refugee protection — human smuggling — relevance of international law to Charter’s overbreadth analysis

R v Appulonappa, 2015 SCC 59 (27 November 2015). Supreme Court of Canada.

The Crown alleged that the appellants were the organizers and crew of a human smuggling expedition. Their vessel, the Ocean Lady, was apprehended off the west coast of Vancouver Island in 2009 with seventy-six Sri Lankan Tamils aboard. The Crown alleged that most passengers paid or promised later to pay CDN $30,000 to CDN $40,000 for the voyage. The Crown charged the appellants under section 117 of the IRPA, which creates the offence of organizing, inducing, aiding, or abetting the coming into Canada people in contravention of the IRPA. ^{Footnote 92} Before trial, the appellants challenged the constitutionality of this provision, arguing that it was impermissibly overbroad as it criminalized not only the act of people smuggling but also the acts of humanitarian workers, family members, and other asylum seekers, none of whom Parliament intended to expose to prosecution.

This constitutional challenge was resolved in the appellants’ favour before trial. The trial judge found section 117 to be an unjustified infringement of the right to liberty under section 7 of the Charter. He ordered the charges quashed. The Court of Appeal for British Columbia reversed. Justice of Appeal Kathryn Neilson for the court held that the purpose of section 117 was to prevent all organizing or assisting of all unlawful entry into Canada, including assistance by family members and humanitarian workers. The provision was therefore not overbroad and the infringement of section 7 was justified. The appellants were remitted for trial.

McLachlin CJ for the unanimous Supreme Court of Canada allowed the appeal but remitted the appellants for trial. As there was no dispute that the provision, being a criminal offence imposing a custodial sentence, engaged the right to liberty, the main question was whether it did so contrary to the principles of fundamental justice. As noted, the principle upon which the appellants relied was overbreadth, meaning that the impugned law “goes too far and interferes with some conduct that bears no connection to its objective.” ^{Footnote 93} The first step was to determine the object of section 117. Next the court must determine whether that provision deprives individuals of life, liberty, or security of the person in cases that do not further that object.

McLachlin CJ found that the object asserted by the Crown was incorrect. While the text of section 117 was admittedly broad, a narrow purpose emerged from (1) the international instruments to which Canada has subscribed; (2) the role of section 117 in relation to the statute as a whole, in particular, section 37(1); (3) the IRPA’s statements of legislative purpose; (4) the evolution of section 117; and (5) the parliamentary debates. The true purpose of section 117 was to combat people smuggling since that concept was defined in section 37(1)(b) of the IRPA, considered by the Court in the companion case of B010. ^{Footnote 94} Specifically, people smuggling excludes mere humanitarian conduct, mutual assistance among asylum seekers, and aid to family members. ^{Footnote 95}

Beginning with Canada’s international obligations, McLachlin CJ observed:

The chief justice then summarized her conclusions about the relevant international instruments in B010. Canada’s refugee protection obligations require our law “to recognize that persons often seek refuge in groups and work together to enter a country illegally.” ^{Footnote 97} Canada’s human smuggling treaties are not directed at family members or humanitarians. “It would depart from the balance struck in the Smuggling Protocol to allow prosecution for mutual assistance among refugees, family support and reunification, and humanitarian aid.” ^{Footnote 98}

McLachlin CJ concluded her consideration of the international instruments as follows:

The chief justice then considered the four other indicia of section 117’s purpose, all of which she found to be inconsistent with the Crown’s argument that the provision’s object was to criminalize all acts of organizing or assisting unlawful entry into Canada, including by family members or humanitarians. Instead, the chief justice held that the purpose of section 117 was “to criminalize the smuggling of people into Canada in the context of organized crime” and not to permit “prosecution for simply assisting family or providing humanitarian or mutual aid to undocumented entrants to Canada.” ^{Footnote 100}

Moving on to the second part of the overbreadth analysis, McLachlin CJ concluded that section 117’s scope exceeded its purpose by “catching those who provide humanitarian, mutual and family assistance to asylum-seekers coming to Canada.” The learned chief justice rejected the Crown’s submission that this overbreadth was saved by interpreting the provision as not permitting prosecution of persons providing humanitarian, mutual, or family assistance. Such an interpretation ignores the ordinary meaning of the provision as well as statements in the parliamentary record acknowledging that the provision was overbroad. ^{Footnote 101} Nor could section 117 be cured by the prosecutorial discretion created by subsection (4), which requires the attorney general to authorize prosecutions under the provision. The chief justice noted the Court’s decision in R v Anderson that “prosecutorial discretion provides no answer to the breach of a constitutional duty.” ^{Footnote 102}

McLachlin CJ therefore held that section 117 infringed the right to liberty under section 7 of the Charter. Turning to the justification analysis, the chief justice acknowledged the provision’s pressing and substantial objective of combating people smuggling and found there to be a sufficient rational connection between the legislative objective and the infringement. However, McLachlin CJ concluded that the Crown had not satisfied its burden of showing that the overbroad provision was nevertheless minimally impairing of the Charter right. It was not enough for the Crown to allege that there was no better alternative to section 117; it had to provide a demonstrable justification for its inconsistency with the protected right. ^{Footnote 103}

While the appellants asked the Court to strike down section 117 in its entirety, McLachlin CJ concluded that the preferable remedy was to read down section 117 so as not to be applicable to persons who give humanitarian, mutual, or family assistance since this remedy reconciled the provision with the requirements of the Charter while leaving the prohibition on human smuggling for the relevant period in place. ^{Footnote 104} The charges were therefore remitted for trial on this basis.