“Saved by the Valve:” Analysis and Takeaways from Canadian Council for Refugees v Canada

To view a summary of the decision in Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17 (“CCR“), see the first installment of this post here.

In this follow-up article, I discuss my main takeaways from the Court’s decision in CCR. As I agree with Kasirer J.’s well reasoned decision, I focus my analysis on the his comments about the hierarchy of rights, the utility of legislative safety valves, and potential uncertainties surrounding Article 6 of the Safe Third Country Agreement. There are also a few shorter (but no less important) takeaways noted at the end.

There is No Hierarchy of Charter Rights 

The Court’s choice not to comment on the s. 1 justification analysis is unsurprising since the s. 15 equality rights issue was remitted for trial. While Kasirer J. did not state as much in his reasons, the Court likely wished to avoid prematurely ‘deciding’ the s. 15 issue, since elaborating on s. 1 here may influence the trial judge’s factual findings and legal analysis before the claim is even heard. 

Declining to comment on the s. 1 analysis also helps dispel notions about a ‘hierarchy of Charter rights’. Kasirer J. acknowledged anxieties among legal commentators about an apparent “pattern of neglect with respect to section 15” in cases where multiple Charter challenges are lodged (CCR, para 180). In response, the Court encouraged trial judges to consider claims that address alternative constitutional grounds in order to avoid a “false economy” that might appear to rank Charter rights (CCR, para 181). 

Although determining the s. 1 issue with respect to the s. 7 claim would not have rendered the s. 15 issue meritless or redundant, had the Court done so, it may well have stolen the s. 15 claim’s proverbial thunder and diminished the perceived importance of its outcome. Thus, the decision to not comment on the s. 1 issue here was a wise one. It will be interesting to see what the evidentiary record discloses in support of the discrimination claim, regarding the denial of refugee status to women facing gender-based persecution and sexual violence. These developments are certainly something to keep an eye out for.

Clarifications Surrounding Legislative Safety Valves

The Court also made several important pronouncements regarding the role of legislative safety valves in Charter challenges, and particularly in s. 7 claims. Kasirer J. stated that in a Charter claim asserting a violation by a rule of general application which is located in a complex, interrelated legislative scheme, its provisions should be assessed against the scheme’s entire context because some provisions may prevent or correct perceived defects (CCR, paras 62-64).

Kasirer J. elaborated on the complementary relationship between curative and preventative measures to limit the scope of provisions of general application. Curative measures are remedial in nature, in that “they repair a breach that would be caused by a general rule by providing a targeted exemption after the fact” (CCR, para 68 citing Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44, para 41). On the other hand, preventative measures are anticipatory or precautionary in nature because they “narrow a general rule by precluding its application in anticipation of a breach, often through legislative exceptions” (CCR, para 68).

Additionally, Kasirer J. took the opportunity to comment on when the legislative safety valves were most appropriately considered in the s. 7 analysis (CCR, paras 71-76). He indicated that preventative measures are highly relevant at both the engagement stage where they can carefully tailor a law of general application so that it never threatens s. 7 interests, and at the PFJs stage where their role depends on which principles are at issue (CCR, paras 71 and 74). On the other hand, given their reparative nature, “curative provisions will rarely, if ever, preclude the engagement of s. 7” and so “are properly considered when assessing whether a deprivation comports” with the PFJs (CCR, para 71 and 76). These comments should not be taken to mean that curative provisions have no role outside of the PFJs stage of the s. 7 analysis. Rather, Kasirer J,’s comments simply highlighted curative measures’ practical utility and their growing significance at the PFJs stage, especially since Bedford recognized that rational and non-arbitrary regimes can violate s. 7 if it violates the PFJs for even one individual (CCR, para 76).

Judicial Review as a Safety Valve?

It is also worth giving some attention to the SCC’s disagreement with the FCA’s view that the availability of judicial review was a relevant safety valve. Kasirer J. was keen to distinguish judicial review from other statutory mechanisms whose purpose is to prevent or cure defects. In his view, it is “unhelpful” to paint juridical review with the same brush as a legislative safety valve or statutory safeguard because judicial review “offers different relief” and “cannot save otherwise unconstitutional legislation” (CCR, para 77). While this does not rejecting the possibility that the availability of judicial review can function as a safety valve in other contexts, it will be interesting to see whether this was indeed what the Court meant.

In my view, judicial review cannot be a safety valve. As the Court alluded to, the general availability of judicial review itself does not “save” or “prevent” a deprivation of constitutional rights. There is no circumstance that immediately comes to mind where the mere availability of judicial review can be presumed to save or prevent a deprivation of constitutional rights. A decision made pursuant to a judicial review might well result in the unconstitutional effects flowing from an infringement being alleviated, but this is a specific outcome that is distinct from the general availability of judicial review as a statutory mechanism. If the mere availability of a statutory mechanism for judicial review was construed to be a legislative safety valve, then any opportunity for review or to appeal could be similarly construed. Judicial review (and indeed appellate review too) might functionally be ‘safeguards’, but they do not possess the same the curative and preventative characteristics to remedy constitutional defects as safety valves.

When are Safety Valves ‘Illusory’?

After rejecting the appellants’ argument that the legislative safety valves relating to the risk of refoulement were illusory, Kasirer J. took the opportunity to explain when legislative safety valves are actually illusory. A preventative measure is illusory if it were provided in law but there is no legal pathway to access it (CCR, para 158). A curative provision is illusory if it was “available in law but unavailable in practice”, as it would amount to an empty promise that cannot safeguard against a breach of constitutional rights (CCR, para 158). While this was not an extensive delineation on the matter, it offers helpful guidance for the future.

Raising Safety Valves Requires Their Proper Explanation and Consideration

Finally, it is important to mention Kasirer J.’s finding that the trial judge erred by not substantively assessing the relevant curative mechanisms applicable to the question of whether the breaches of s. 7 rights accorded with the PFJs. (CCR, para 159-161).  Though Kasirer J. stated his hesitation to blame the trial judge — as the parties, in structuring their claim, did not clearly address how these legislative safety valves might be relevant (CCR, para 160) — this served as a warning to counsel and judges to properly identify and explain the relevance of the legislative safety valves relied upon in submissions and decisions. It remains the duty of the claimant to show that “the legislation causes the exemption to be illusory in their individual circumstances” (CCR, para 159), and it is for the trial judge to assess the legislative safety valves in a substantive way (CCR, paras 159-160).

One speculates that this could render the Court’s earlier suggestion that claimant’s do not need to explicitly target legislative safety valves in their s. 7 claims against generally applicable laws somewhat empty (see CCR, para 69). Two reasons for this are that (1) claimants may need to explicitly address legislative safety valves given the high threshold to deem them illusory; and, (2) claims might need to be re-tried if judges do not have sufficient records to base their analysis on, which again might force claimants to address safety valves more explicitly in structuring their claims.

However, I believe the Court’s commentary here serves a different purpose. While I don’t disagree that individuals making Charter claims will often need to discuss legislative safety valves where they are engaged, I believe the Court’s intention here was to remove a hurdle for constituting s. 7 challenges. This has the knock-on effect of making it easier for claimants to have their constitutional challenges adjudicated. Of course, if a legislative safety valve is engaged and the claimant is unable to access it, they must address why that safeguard is either illusory or, alternatively, why it should have been applied in the individual’s circumstances (see CCR, para 159). But if a generally applicable provision breaches s. 7, and that same provision or a related one also renders a relevant legislative safety valve illusory or beyond reach, then it proper target of a constitutional challenge is the provision(s) causing the deprivations of s. 7 and to the  relevant legislative safety valve. It would make little sense to argue that the legislative safety valve is unconstitutional in that scenario. Although the Court’s commentary here might end up being a formality, it is not empty of meaning or guidance.

Uncertainties for Refugee Claimants

In the context of refugee claims where the Safe Third Country Agreement applies, curiosity remains with respect to the function of Article 6. Kasirer J. determined that the curative mechanisms in the IRPA and IRPR are to be understood in light of Canada’s discretion in Article 6 to consider any refugee status claim in its public interest (CCR, para 152). Though Kasirer J. acknowledged that Canada has “only ever expressly relied on Article 6 to create categorical exceptions”, he also framed this discretionary power as a sort of panache for the ills of the domestic legislative regime (CCR, para 156). Indeed, he wrote that “[t]he public interest authority preserved in Article 6 may be exercised on an individualized basis through the IRPA’s curative mechanisms” (CCR, para 162) and emphasised that Canada could consider “any refugee status claim” pursuant to this power (CCR, para 153; emphasis in original). 

A possible concern for refugee claimants is that the mere existence of Article 6 may serve as a justification when refugee claims are denied. If Article 6 is an ‘elixir’ or a ‘cure-all’ whose potential exercise serves as a discretionary safety valve, certain parts of the IRPA and IRPR might effectively be immune from a s. 7 Charter challenge simply because this sweeping power exists. There is nervousness around the sufficiency of reasons for declining to exercise the Article 6 power because doing so was not in the public interest, whatever that even means. 

To be sure, decision-makers deserve the benefit of the doubt and the curative measures in the IRPA and IRPR are not subordinated by the existence of Article 6, even though they must be understood in light of Article 6. Nonetheless, one can imagine some dangers regarding procedural fairness or the inconsistent application of ‘the public interest’ that might arise from such a sweeping discretionary power. In this regard, the importance and availability of judicial review cannot be understated. I think the treatment of Article 6 and the meaning of “public interest” by Canadian courts and public authorities will be worth monitoring, especially given recent humanitarian crises and the resulting influx of refugee claimants in Canada.

Other Notable Takeaways 

It is also worth noting that Kasirer J. rejected Canada’s argument that the “shocks the conscience” standard applies to Charter challenges to legislation (CCR, paras 118-120). The Court acknowledged that while it had used the language of “shocks the conscience” to inform the gross disproportionality standard in previous cases, this standard may apply in challenges to the constitutionality of individual administrative decisions, but it is irrelevant to a Charter claim challenging the constitutionality of legislation (CCR, para 118; also see para 122).

Moreover, the Court reaffirmed that refugee claimants are not limited in their options for launching constitutional challenges, as “it is possible to consider challenges to both legislative and administrative conduct within the same proceeding” (CCR, para 121). 

Conclusion

Canada’s legislative regime for refugee claims is a complex web. The Court’s decision comments on the role and utility of legislative safety valves in Charter challenges may serve as a touchstone for future challenges to the constitutionality of Canada’s legislative regime for refugee claims. 

Although the Court dismissed the appellants’ s. 7 claim on its merits, the s. 15 equality claim will be interesting to watch, especially in light of recent humanitarian crises and the influx of refugee claimants in Canada potentially introducing new evidence to the record. Additionally, possible shifts in U.S. foreign policy and narratives surrounding refugees leading up to the 2024 Presidential election may introduce a new geopolitical dynamic that Canadian officials could/should consider when assessing the risk of refoulement from the U.S. Ultimately, these will be developments that are most appropriately understood at the trial level, given its fact-finding specialisation, which further underscores the importance of this Court remitting the s. 15 issue back to trial in CCR.

This article was edited by Farah Abdel Haleem