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The Federal Court slices and dices more Harper law

Canadian Courts have been systematically erasing the Harper legacy in immigration and refugee law since Harper relinquished power to Prime Minister Justin Trudeau and his crew in 2015 – and rightly so. 

In B10 v. MCI, the Court held that the government’s interpretation of people smuggling was inconsistent with basic principles of international law and parliament’s original intention (a parent could not be a people smuggler for helping their child escape oppression!); in Canadian Doctors for Refugee Care v Canada (AG), Justice Mactavish found that the restrictions on access to health care for some refugee claimants violated s. 15 equality rights guaranteed by the Charter; and in Y.Z. v Canada (Citizenship and Immigration), Justice Boswell found that the denial of access to appeals at the Refugee Appeal Division for refugee claimants from specified countries, was also a violation of s. 15 of the Charter.

Now we have a new rebuke of human rights law carrying the stain of political whims – an apt description of how Harper’s government carried on refugee law. Whims usually don’t lead to smart decision-making. Perhaps even less so when those whims are politically driven, and not based on reason, logic or any sense of compassion. So, the whim of time-restricting only some nationalities from a constitutionally mandated assessment of a risk of torture – the Supreme Court of Canada in Suresh v. MCI (2002), held that a refugee could not be deported to a country in which they were at risk of torture – finally came before a judge of the Federal Court in Feher v Canada (Minister of Public Safety and Emergency Preparedness).

In compliance with the Suresh decision of the Supreme Court, the Harper government had to permit something called a Pre-Removal Risk Assessment for failed refugee claimants. The assessments were a last-stop measure to ensure that refugee claimants were not deported to dangerous and life-threatening conditions. However, faced with a backlog of cases that had grown to unmanageable numbers, and a belief expressed by the former Minister of Immigration Jason Kenney that many claims were “bogus,” a prohibition from applying for a PRRA within three years of a failed refugee claim, was imposed on nationals of Designated Countries of Origin, those countries from which, it was believed, genuine refugees did not come to Canada. This latter premise proved to be inaccurate, as one of the DCO countries on the list was Hungary, from which persons of the Roma ethnic group were trying to get out to escape persecution against them.

The applicants in Feher argued that the law which created the three-year prohibition on applying for a PRRA violated s. 15 of the Charter. The test for whether a law constitutes an infringement of s. 15 is a two-step process: Whether the impugned law draws a distinction based on an enumerated or analogous ground; and if so whether it imposes burdens or denies a benefit in a manner that has the effect of reinforcing, perpetuating or exacerbating disadvantage, including historical disadvantage. 

The Court in Feher agreed that the law breached s. 15. Justice Keith Boswell held that the law created a distinction based on the national origin of a refugee claimant, a distinction that was not justified, citing statistics that indicated that claimants from some DCO countries won over 57 per cent of their refugee claims. In the second part of the s. 15 analysis the court found that the DCO regime created a presumption that refugee claimants from some countries which are generally considered safe and “non-refugee producing” are likely to be “bogus claimants.” He concluded that “persons directed affected by paragraph 112(2)(b.1) undoubtedly include many claimants who are not abusing the system or making bogus claims.” That presumption created an uneven playing field and a distinct disadvantage to refugee claimants from DCO countries.

The great legacy of Pierre Trudeau through s. 15 of the Charter was used to correct an injustice. Let’s hope the great one’s son Justin takes careful notice.