Everyone, who follows the controversy of whether or not the current US administration has slipped back to the dark age of using torture as a tool of its executive power, now, should know that, on Thursday November 29, 2007, the Federal Court issued an opinion regarding the Safe Third Country Agreement between Canada and the US which in effect concluded:
"that the United States does not comply adequately with Article 33 of the UN Refugee Convention, which prohibits return to persecution, or Article 3 of the Convention Against Torture, which prohibits return to torture -- specifically naming the Maher Arar case (the documents of that judicial inquiry are stored at the Library of Canada) as an example of the United States' failure to protect.
Jaya Ramji-Nogales
IntLawGrrls
November 30, 2007
Response to the Court's conclusions, which are the result of an action for a judicial review brought by a group of NGOs and John Doe, have, I'd say, been predictable:
the Canadian Minister responsible for immigrant indicated, through spoke people, that she was reviewing the Court's conclusions and thinking up potential questions for the judge to certify, thus allowing an appeal (a judicial review under the Immigration and Refugee Protection Act is not appealable unless the Court certifies a question(s) to be considered by the Appeals Court);
the US Ambassador to Canada said that the US "has a proud record of accepting and protecting refugees, defending human rights and adhering to our [US] treaty obligations.";
the NDP immigration critic said she wants to bring forward a motion to the House of "... Commons all-party citizenship and immigration committee ... " to scrap the Safe Third Country Agreement;
some of the applicants [those seeking the judicial review] said they would also just like the Safe Third Country Agreement scrapped; and
in the blog space some are saying look a judge is saying: "the US tortures", and others are crying out that "activist judges are destroying us "by taking power away from Parliament.
Me, I wonder what will actually happen after January 14th, this is the final deadline for any submissions to the Court before it decides whether it will certify any questions proposed to it from the parties and thus allow an appeal process to be considered by the next Court up.
If the Court doesn't certify any questions then the Safe Third Country Agreement is nullified. If this happens some expect that refugee claimants arriving at land border ports of entry may increase by the thousands. For this we'll have to wait and see.
But what actually did the Court find?
First, the Court found that:
"paragraphs 159.1 to 159.7 of the Immigration and Refugee Protection Regulations and the Safe Third Country Agreement are ultra vires in that the conditions to the enactment of the Regulations specified in IRPA s. 102(1) had not been met ..."
In other words the paragraphs noted by the Court, in the regulations, exceed the powers granted to the Minister of Immigration by the law Parliament past, specifically the Minister exceeded the authority granted by section 102(1) of the Immigrant and Refugee Protection Act.
Paragraphs 159.1 to 159.7 are those parts of the administrative rules implemented by the Minister to give effect to a safe third country arrangement with the US.
In regard to finding parts of the regulations ultra vires, you have to admit it is funny to read some of the comments to MSM stories about the decision, the ones that rant about activist judges thwarting Parliament, I mean. Now, if these individuals were ranting about activist Ministers or an activist executive arm of government thwarting Parliament, they might be correct, but judges, please.
When Ministers do something that could be outside the law, citizens can apply for a judicial review to nullify their actions or the rules they may have put in place. This is exactly what has happened in the case of the Safe Third Country Agreement with the US. The Federal Court conducted a judicial review and issued its findings.
But why would the Court find that a Minister overstepped what Parliament had intended in the Immigrant and Refugee Protection Act?
Simple really. Because the conditions imposed by Parliament, in section 102 of that Act, were not met by the Minister, nor are they now being met.
The section requires that a review of policy and practices relating to both the UN Refugee Convention and the Convention Against Torture be carried out if Canada has a safe third country arrangement with the US. However a review appears never to have been undertaken, nor are the policy and practices being reviewed "continuously", as required by the law**. Thus a key limitation, imposed by Parliament on a Minister, in making regulations for safe third country arrangements has never been met.
The Court's findings go farther than that, of course. It, in effect, conducts its own review of US policy and practices in regard to refugees and torture and concludes:
"that the Governor-in-Council [the Minister acting for the GG, who is the head of state] acted unreasonably in concluding that the United States complied with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture ...
A diplomatic way of writing something quite unpleasant about our neighbour?
The Court's reasons for its findings are laid out in the 126 page decision, now available in HTML format, which is long but very readable. On page 99, of the pdf formated version of the document, the Maher Arar matter is specifically mentioned. It is interesting how the Court takes that case into account in drawing its conclusions about the US meeting obligations under Article 3 of the Convention Against Torture
"[260] While this is not the Maher Arar case and this Court is not trying that case, the Court can take judicial notice of the findings of the Report of Commission of Inquiry into the Actions of Canadian Officials in Relation to Maher Arar (the Arar Report). Although the U.S. did not participate in those proceedings, it advised the Commission that it complied with Article 3 of CAT.
[261] The facts in the Arar case give one serious cause to doubt that assurance. It may be that the assurance is based on a narrow interpretation of Article 3 but it would be an interpretation which is at odds with Canadian understanding of the obligations under CAT (see IRPA s. 102(2)(b)).
[262] Specifically, in this regard, the Applicant’s submissions and evidence that the U.S. does not comply with Article 3 are credible. Those submissions and evidence are supported by a real life example and therefore more credible than the Respondent’s [Canadian Minister and US] evidence. It was unreasonable, given the evidence, for the GIC to conclude that the U.S. meets the standards of Article 3 of CAT.
[263] Further, but standing as a distinct matter, the Arar Report and the circumstances examined should have at the very least caused a thorough and comprehensive review of U.S. practices and policies. It is difficult to understand how or why the obligation to have a continuing review, mandated by s. 102(3), was not immediately put into operation on an urgent basis. There is no evidence of any such thing occurring.
For some, I'll bet the Courts decision whether it makes it to an appeals process or not is embarrassing. The Court did, after all, single out a specific federal official's evidence with coded disdain:
"[107] As I indicated, each of the experts is well qualified and I believe gave evidence honestly as to their perspectives. However, the Applicants’ experts were generally more focused, both in their expertise and their opinion, as compared particularly to the more general evidence of Bruce Scoffield. Many of the areas relied upon by the Applicants to show non-compliance were alluded to by Scoffield but just not expanded upon, either in this Court or before the GIC. The Applicants’ experts have expanded upon some of those areas to show their importance in practice and in terms of compliance with the relevant Conventions.
And, a Canadian federal Court has now said, diplomatically I grant you, but a Court has nevertheless said it, the US is not living up to Canadian standards regarding refugees and protections from torture and that because of this an agreement between the 2 countries is void. This has to be embarrassing for any self-reflecting members of the Canadian Privy Council that interact with the US Cabinet.
To conclude, Canadian officials, what can you say about them, incompetent drones, unethical sleep walkers, malleable twits, lawless thugs in suits or just nitwits lost in a 1950's view of our Southern neighbour. They may have simply taken the US as an upstanding country for granted which would mean they are all but one of my insults - I hope they aren't thugs but not much surprises me anymore. It would be nice to know I'm wrong. But, you do have to wonder if, say Scott Horton, had an off-the-cuff chit-chat with any senior Canadian official, in any of our public departments or organizations, would he get a similar response to the one he reported in his A Nation That Tortures note when a foreign, and I presume non-Canadian, official told him:
“I can assure you that we take our obligations under article 3 very seriously. We will not speak publicly about this, but of course we have terminated cooperation with the United States in ways that would violate article 3. And of course we have reached the only possible conclusion, which is that the United States has embraced torture as a matter of formal policy.”
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** Below is an excerpt from the Regulatory Impact Analysis Statement for the Immigration and Refugee Protection Regulations, published October 12, 2004, in the Canada Gazette that implies a review of US compliance with the factors specified in section 102 of the Immigration and Refugee Protection Act had been undertaken by Canadian officials and that a "continuous" review process would be put in place. Wonder what happened, eh.
"Prior to the signing of the Agreement and since these Regulations were pre-published in 2002, the Government has continued to monitor developments in the United States related to the aforementioned factors [adherence to both the UN Refugee and Convention Against Torture]. Pursuant to subsection 102(3) of the Act, a process for ongoing review will be in place in order for the Minister of Citizenship and Immigration to monitor compliance with these factors.
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