Thread by @thechaiyun

In anticipation of the #STCA Safe Third Country Agreement Appeal starting, this is the decision under review at the Fed CA. Fed Ct fd STCA violated s 7 #Charter rights of ref claimants
I'll be tweeting intermittently with comments.
#refugees #cdnimm #law

decisions.fct-cf.gc.ca/fc-cf/decision…

If ur curious, the #STCA Safe Third Country Agreement is still in force. The Fed CA refused to grant a stay to suspend the agreement till the appeal is resolved even tho arguable irreparable harm re Fed Ct fd #Charter violations
#refugees #cdnimm #law

decisions.fca-caf.gc.ca/fca-caf/decisi…
+

As well, even tho there are a multitude of intersectional issues relating to the #STCA Safe Third Country Ag, 13 orgs thru 6 intervener applications were denied participation in the hearing at Fed CA. #cdnimm #refugees #law

decisions.fca-caf.gc.ca/fca-caf/decisi…

Panel presiding is Chief Justice Noel, Justice Stratas and Justice Laskin at the Federal Court of Appeal. #cdnimm #refugees #law #STCA

Because the Gov't of Canada is appealing, their legal team starts providing their submissions as to why the lower court decision at the Fed Ct was made in error. #cdnimm #refugees #law #STCA

Just taught my students @uocommonlaw yesterday that in appeals, it is not about relitigating the issues but about finding errors in the judge's decision and to point them out to convince court to go back to the lower court to redo. #cdnimm #refugees #law #STCA

Gov't of Canada arguing there is no #Charter infringement in #STCA. First legal error is finding liberty interests engaged. This is in reference to purported risk of detention in the US.

Stratas J posing question characterizing risk as abstract. Govt counsel arguing that there must be a "real risk" and that there is no real risk here. #cdnimm #refugees #law #STCA

Govt't arguing lower court used wrong legal test re fundamental justice in s 7 #Charter analysis.

#cdnimm #refugees #law #STCA

Gov't arguing not all returnees (#refugee claimants) detained in US, pointing to affidavit evidence & cross-examination evidence submitted at the lower court. #cdnimm #refugees #law #STCA

Stratas J Q: Standard of Review is mixed fact & law, so palpable and overriding error? You're asking us to make a diff finding of fact & law to substitute views. Evidence of real detention among 6 real litigants in this case & other evidence... con't

Stratas J Q cont'd: Judge at Fed Ct inferred or extrapolated from real life instances and made a factual finding and other side will say we can't interfere.

Gov't arguing not impossible to find overriding and palpable error and that the findings are based on erroneous assumptions. #STCA #cdnimm #refugees #law

Not surprising that Stratas J would be asking about how to apply SOR, being a big #admin #law thinker in this area.

Interesting that Stratas J asking how to meet that standard.

Interesting reveal in question asked that Stratas J alluding to reliance of applicant experience is not enough to find #Charter violation? #cdnimm #refugees #law #stca

Gov't arguing applicants are a small subset and their experiences not representative of experience of #refugee claimants and ignores experiences of those not detained in US when returned. #STCA #cdnimm #refugees #law

Gov't arguing this is not enough to engage in liberty interest in s 7 #Charter. #cdnimm #refugees #law

Would love to hear from #Charter experts on why the applicant's experience is or is not enough to find violation? #cdnimm #refugees #law #STCA

Gov't also arguing Fed Ct rejected of the "safety valves" at port of entry - performing eligibility assessment is itself a process; eligibility is postponed if H&C & others raised. I #cdnimm #refugees #law #stca

Stratas J: Suggests another safety valve, review mechanism 102(3) of IRPA re if designation of the country, resulted in overbreath etc - Min studies this on ongoing basis. Policy where done warranted or yearly. Says applicants have not attacked this #cdnimm #refugees #law #stca

Gov't has relied on "safety valves" in a multitude of #cdnimm #refugee cases in the past to deny looking at the merits of #Charter violations IMO. Existence of other pathways, other provisions - would this be acceptable in criminal cases? #law #stca

"Safety valves" are identified sometimes as "alternative remedies" - something I have a huge issue with because those alternatives or mechanisms are never evaluated as to their effectiveness in #Charter analysis. #cdnimm #refugees #law #stca

"Safety valves" or "alternative remedies" are taken for granted and assumed to operate in ways that dampen or prevent #Charter violations. #cdnimm #refugees #law #stca

Govt arguing remedy of judicial review is available for any administrative #law decisions. #Charter #cdnimm #refugees #law

These arguments ignore the reality that #refugee claimants understand this complicated area of #law and can advocate for themselves, pointing to various apps in IRPA like H&C, PRRA, Judicial Review. So unrealistic and such a huge burden to maintain there is no #charter violation

Of course gov't relying now on the established case law I spoke of earlier finding "safety valves" allow courts to circumvent duty to see if there is a #Charter violation. #cdnimm #refugees #law #stca

Again Govt taking issue with Fed Ct finding #Charter violation resting on applicant experience. "One person alone" is not enough for the gov't and they argue is an error. Isn't one person's experience enough to raise red flags? #stca #cdnimm #refugees #law

Stratas J: One person not enough to meet shock the conscience test. So what kind of evidence needed? #stca #cdnimm #refugees #law

Govt response arguing - demonstration of departure in US law from international refugee law standards. US law in line with int'l law. Mechanisms and safety valves in place. #stca #cdnimm #refugees #law

This approach that one person's experience is not enough and the turn to safety valves and mechanisms dampens or diminishes #cdnimm #refugees ability to invoke #Charter.

Laskin J: Burns SCC case - any violation should be enough? #stca #cdnimm #refugees #law

Gov't arguing "simple violation" may not be enough. Not sure why not - why qualify our #Charter rights. #stca #cdnimm #refugees #law

Why isn't the detention of even one person trying to get #refugee protection not shocking to one's conscience? #stca #cdnimm #refugees #law #Charter

Govt arguing there is nothing on record that shocks conscience. Re Burns SCC - shocks conscience met in unacceptable cases, death, mutilation, torture. Curious to see how gov't will say that potential refoulement to torture and persecution as well as detention not meeting? #stca

Govt' arguing that detention of asylum seekers is permissible in int't law. Detention is discretionary in the US #law. Also effective mechanisms for relief from US asylum law. #stca #cdnimm #refugees #law

Govt seems to be relying on "safety valves" in US law too on paper, but evidence in lower court suggests they are not working like expected. #stca #cdnimm #refugees #law

Stratas J: Are u saying Fed Ct wrongly applied #charter to foreign state action, action of US authorities? #stca #cdnimm #refugees #law

Govt replied. Yes.
IMO, why are we delegating decisions to the US then in #refugee assessments? If we are, shouldn't we see how ppl subject to our decs affected? #stca #cdnimm #refugees #law #Charter

Always interesting to watch how judges like to reframe or suggest arguments when asking questions. Govt lawyer certainly took advantage of this prompt. #law #advocacy #conversationoverbench

Govt taking issue with how Fed Ct characterized goals of legislative objective. Fed Ct recognized it as administrative efficiency. #stca #cdnimm #refugees #law

Grossly disproportionate test applied wrongly govt argues. The #STCA is applied in a way that is in line with the legislative objective, govt argues. #Charter #cdnimm #refugees #law

Govt arguing that Fed Ct misconstrued impact of detention on how #STCA is meeting legislative objectives. Doesn't stop ppl from pursuing asylum claims. #stca #cdnimm #refugees #law

Isn't not just that one meets legislative objectives but in the pursuit of it, #Charter rights are not violated? #stca #cdnimm #refugees #law

Stratas J: On this record, there will be some turned back that will be detained and do not have legal counsel? There are some aren't there? #stca #cdnimm #refugees #law

Gov't arguing that based on evidence on record, applicants had counsel. #stca #cdnimm #refugees #law

Stratas J: Based on record, there is a risk that if someone turned back and encounters US system, they may not have counsel. This is a possibility? #stca #cdnimm #refugees #law

Stratas J: Just on what you said, isn't that enough to let judge's ruling stand on overriding and palpable error which as you state is a high test. #stca #cdnimm #refugees #law

Govt arguing that on the evidence - contend that persons have access to legal counsel more than they do not. Almost everyone detained has access to counsel. #stca #cdnimm #refugees #law

Govt arguing no evidence that US denies #gender-based persecution claims at a higher rate than other countries. Is that the standard? Shouldn't the fact it may deny enough? Don't we need to meet our int'l obligations? #stca #cdnimm #refugees #law

Govt argued Fed Ct erred that there are less impairing ways to meet legislative objective.
IMO we have the gold standard in #border and #refugee determination processes. Why mess with a good thing? #stca #cdnimm #refugees #law

Stratas J: How to characterize the nature of the #charter challenge? They all challenged right of the #border agent to turn ppl back to US. As Charter concerned, the JRs did so on basis that the designation of US under regs was invalid....con't

Stratas J: cont To me, sounds like facial challenge to provision of the statute. They were not arguing that their charter rights violated. Went 1 step further, looking at designated provision, its purpose and effect violates charter. Do you agree? #stca #cdnimm #refugees #law

Govt agrees. Facial challenge not supported by evidence of what actually happens. Evidence at bar - ppl not routinely detained in US and detention discretionary and there is release mechanisms. #stca #cdnimm #refugees #law

Finding this difficult - thinking thru the #cdnimm detention cases and how release mechanisms failed ppl and now we can rely on existence of subpar/poor mechanisms to avoid scrutiny of #Charter violations? #stca #cdnimm #refugees #law

Court adjourned for a brief break. See you all at 11:10. #stca #cdnimm #refugees #law

Govt arguing - some safety valves may be actions on individual cases but some are institutional. Different kinds of safety valve - delineate. Designation of US is not a mitigation tool #stca #cdnimm #refugees #law

Stratas J: US designated as safe. Facial challenge against designation. Seemed to me that any assessment of designation has to take into acct, there are periodic reviews using criteria to ensure that designation justified. #stca #cdnimm #refugees #law

Stratas J: Concerned because SCC in PHS case - look at the prohibition of drug possession case - may seem overbroad but not overbroad because existence of another section in statute that allows Min to give exemptions so that ppl in certain circs can possess and use drugs

Stratas J: Difficult for this Ct to rule on this b/c part in parcel in designation is the ongoing review. Question arises in facial challenge, in purpose or effect, the whole scheme violates Charter not just designation alone. Practical Q - these reviews/assessments reasonable?

Stratas J: Fed Ct only looked at designation. Sin in not looking also at the reviews. #stca #cdnimm #refugees #law

Govt - We haven't raised that issue. Friends have not had opportunity to respond to it. #stca #cdnimm #refugees #law

Stratas J: Lots of jurisprudence that says we can raise this - insufficiency of record. Raised by court - regardless of what parties done, how can we assess this? #stca #cdnimm #refugees #law

Govt - there is a record on the reviews. Careful. Whether or not reviews are reasonable - caution ct away from this approach. Guided by admin law principles. These are not decs made under the IRPA. Is it an admin law dec? #stca #cdnimm #refugees #law

Stratas J: Based on my knowledge, it is a dec within meaning of s 18. Respondents chose not to pursue that avenue. #stca #cdnimm #refugees #law

Again I find this troubling that the reviews (alternative remedies or safety valve narratives) can shield courts from doing a proper review of whether there are Charter violations. Existence of mechanisms not enough IMO #stca #cdnimm #refugees #law

Govt arguing remedy wrong. Focusing on constitutional defect in regs not from 101(e) of IRPA. Govt wants to preserve existence of ability to designate in future. Error in striking 101(e). #stca #cdnimm #refugees #law

S 101(e) absent designation consistent with #Charter govt argues. Relying on SCC decs - remedial principles. Identify and remedy the unconstitutionality by looking at precise nature and scope of violation; tailored to the violation; so constitutional aspects preserved. #stca

Govt arguing focus is on the US system and not 101(e) but rather the conditions that stem from designation. Not 101(e) alone does not catch anything unlawful. #stca #cdnimm #refugees #law

Govt argues that sharing of responsibility in 101(e) - int'l refugee sharing agreements permitted in int'l law and therefore provision should not be struck out. Preserving future opportunities to create "Safe Third Countries" #stca #cdnimm #refugees #law

Govt arguing 101(e) has no constitutional law defect. Has valid objective in IRPA. Unnecessary to strike down provision. #stca #cdnimm #refugees #law

Noel CJ: The reviews to be conducted over time. Seems to me that these reviews recognize that circumstances can evolve and fact country qualifies as safe one day may not be true the next day. Do you agree? #stca #cdnimm #refugees #law

Noel CJ: obligation to monitor, consider, examine what is going on in the US in order to make sure that the designation remains warranted? #stca #cdnimm #refugees #law

Noel CJ: Criteria other than Ref Conv and Torture Conv, req to meet human rights standards? If this ongoing review conducted properly over time and based on cogent examination of facts, conclusion that US meets the Conventions, excepted that designation should remain? #stca

Noel CJ: This is not relevant to the Charter question in this case? Safeguard in Act intended to ensure ongoing compliance - nothing to do with conclusion that the designation infringes on the Charter rights of the applicants? #stca #cdnimm #refugees #law

Noel CJ: It is part of the scheme. Scheme intended to ensure ongoing compliance. This ongoing examination took place. Conclusion we can draw - designation remains so review conducted did not suggest that designation should be withdrawn #stca #cdnimm #refugees #law

Govt agrees. Says there is are ongoing process and analysis and many reviews. There isn't a singular decision to review. #stca #cdnimm #refugees #law

Noel CJ: Every day the designation allowed to stand. Someone somwhere in IRCC has concluded that designation should remain? #stca #cdnimm #refugees #law

Govt says don't agree. Purview with Gov in Counsel. To suggest there is a new decision every day not accurate. Not new challengable dec literally every day. #stca #cdnimm #refugees #law

Noel CJ: Statute provides ongoing review. Mandamus could compel a review? Govt agrees. #stca #cdnimm #refugees #law

Noel CJ: Provisions that allow for ongoing review relevant to #Charter analysis conducted by Fed Ct? Govt - If we are changing lens to review system then yes, it is relevant. Fits in role that removals are lawful. #stca #cdnimm #refugees #law

Stratas J: For benefit of ppl watching, issued a direction last week to parties signalling wanting more info on reviews. #stca #cdnimm #refugees #law

For #law students, watching these advocates respond to questions on their feet is amazing. You never know what you will be asked. #mooting #advocating #stca

Govt now addressing cross-appeal - no need to consider if CA feel that the dec should be overturned. #stca #cdnimm #refugees #law

Stratas J explaining cross-appeal asking for declaration that s 15 also violated. #stca #cdnimm #refugees #law

Govt saying if appeal dismissed then they might have to deal with cross-appeal re s 15 #Charter. #stca #cdnimm #refugees #law

Many of us disappointed Fed Ct did not deal with s 15, missed opportunity. Much to say re whether cts should be compelled to address when parties raise. Interveners would have addressed this. Unfortunate they were denied leave. #stca #cdnimm #refugees #law

Govt argued that on appeal should not address if Fed Ct did not address because "going through back door". #stca #cdnimm #refugees #law

Stratas J: Once certified Q issued, open to the court to look at any and all legal issues at lower court. Govt saying this is improper and mockery of certified Q. #stca #cdnimm #refugees #law

In my own personal experience, certified Q has always been as Stratas J stated been a gatekeeper and certainly should not foreclose the CA from looking at entire record including all arguments/submissions made by parties. #stca #cdnimm #refugees #law

For those of you unfamiliar. The Fed CA only hears appeals if the Fed Ct has "certified a question" or identified questions of law that merit the time of the CA. They typically deal with questions of law or mixed law/fact. So no automatic appeals. #stca #cdnimm #refugees #law

In a sense, the judge of the Fed Ct (first decision) has the power to determine if their decision can be appealed. Usually parties make separate submission as to what the certified questions could be and the Court will either grant or deny. #stca #cdnimm #refugees #law

Govt argued principle of restraint of making unnecessary #charter findings. IMO, it is not unnecessary to deal with intersection/differentiated experiences of #refugee claimants especially when applicants identified this for eg in #gender-based claims. #missedopportunity #law

All the more important to consider other potential violations under s 15 esp if Fed CA convinced that #detention not an issue in this case re s 7 #Charter. #stca #cdnimm #refugees #law

Govt arguing what is being requested is a de novo s 15 finding, striking down #law. De novo means "anew" or a "fresh" decision. Govt arguing unusual and not been done where lower ct has not made ruling. #stca #cdnimm #refugees #law

Stratas J: Exploring jurisdiction. Parliamentary commandment gave power to theoretically to do what the respondents tell us to do. Govt saying not at issue whether you can do it but you should not do it. #stca #cdnimm #refugees #law

I know the interveners would have made submissions on this - whether or not a new s 15 decision should be made by this court and important reasons to do so. A shame they were not granted status. #stca #cdnimm #refugees #law #Charter

It may seem trite to say Appellate Cts should confine themselves to text of the lower court decision but where there are #Charter violations at play and if there is doubt that findings of the lower ct should stand, why shouldn't we also review the decision to NOT decide? #stca

IMO isn't the decision not to review this aspect (s 15 of #Charter) a decision in and of itself? #stca #cdnimm #refugees #law

Seeing Noel CJ nod when govt arguing Courts of Appeal should not act like courts of first instance. Really important to think about receptivity of this - means that if courts refuse to rule on a #Charter argument - fatal to raising this in appeal? #stca #cdnimm #refugees #law

For those not familiar with this process. The Fed Ct is not like other fact-finding courts - most of the evidence submitted through affidavit and documentary evidence. Court of Appeal here could very well do a de novo decision. #stca #cdnimm #refugees #law

Stratas J: Suggesting that reviews central to this legislative scheme.
IMO this is signalling the panel's suggestion that this is an appropriate safety valve. #stca #cdnimm #refugees #law

Govt saying that cut off in submitting evidence - record may not longer be valid - significant consideration in this case. Therefore findings of fact should not be made now in this court. #stca #cdnimm #refugees #law

For those unfamiliar, Court of Appeal can only look at evidence submitted at the first level Fed Court. Nothing new has been submitted for this process. #stca #cdnimm #refugees #law

Govt is IMO playing with fire by suggesting that the Court of Appeal should look at the contemporary context (Biden administration) to consider why they should not make a ruling on s 15 #Charter argument.

Lunch Break. Back at 1:15.

As we prepare to head back, noticing great tweeting on #STCA by @CARLadvocates @amp6 Great to see multiple perspectives #law

Govt arguing "vires" that this court's 2008 decision (prior case on #STCA) means that this court should not do another assessment. They are arguing 2008 decision remains good law. #stca #cdnimm #refugees #law

For reference, the 2008 decision: decisions.fca-caf.gc.ca/fca-caf/decisi…

Inquiring of "vires" is question of validity in enactment of law govt argues & Fed Ct erred in revisiting this. Govt arguing promulgation of regulation occurred 4 years prior to 2008 decision and had ample opp to review this. Can't assess post promulgation evidence. Temporal lens

Govt argues vires assessment to legality of promulgation and cannot rely on evidence postdating promulgation. Designation already ruled intra vires in prior dec. #cdnimm #refugees #law #STCA

Govt arguing vires assessment must be assessed by factors, info at time of promulgation - timing and purpose question does not change. #cdnimm #refugees #law #STCA

Govt argument is curious to me IMO. Society evolves & our views on what is a good law can change esp now we see effects? We can never question again? Designation of US never to be questioned? Stare decisis or vires principles can't be that rigid. #cdnimm #refugees #law #STCA

Stratas J: Review provision may be key here under s 102(3) - statutory law binds courts and ousts common law. Issue of ongoing compliance - regulation difficult to sustain not really a vires but a challenge of a review decision. #cdnimm #refugees #law #STCA

Govt also relying on res judicata but the applicants and evidence entirely different in this proceeding compared to 2008. #cdnimm #refugees #law #STCA

Govt focusing on timing of when regulation became ultra vires vis-a-vis the applicants. #cdnimm #refugees #law #STCA

Govt arguing res judicata - re "endless legal attacks". The argument that it is already settled and can't be litigated again because of the 2008 dec. #cdnimm #refugees #law #STCA

Govt arguing that there is nothing to be challenged under vires label since the vires question already settled in 2008. Govt trying to distinguish this from an administrative law decision. #cdnimm #refugees #law #STCA

Interesting to note for #law students. What are you challenging: the regulation, a decision flowing from that regulation? Keep that in mind when drafting and asking for remedies. Here govt trying to delineate the actual reg fr actual designation fr individual decisions at border.

Noel CJ: When decs made - might be useful for ct to have full record of reviews so we could express a view on this. We're not in a position to do that b/c we don't have the full record of reviews & whether they took place in period of time and whether conclusions is a decision.

This is important #law students- whenever going to a court of first instance my practice is to think ahead. Stack the record in anticipation of potential JRs and appeals. #cdnimm #refugees #law #STCA

Govt has good response by arguing there is enough info in the record. #cdnimm #refugees #law #STCA

Of course, it is always hard to anticipate what the court will fixate on or what they will find salient. #litigation #cdnimm #refugees #law #STCA

Noel CJ: Based on review of evidence, does it disclose time in which review commences and ends. Govt says yes - dated as when they occur or a period in which they cover. Noel CJ: So there is a beg and end? Govt says depends. #cdnimm #refugees #law #STCA

Govt says everyday, process is ongoing, leading to different work products. #cdnimm #refugees #law #STCA

Noel CJ: Can you confirm that on this record, we know the review(s) conducted resulted in conclusions that no basis to disqualify or recommend to Cabinet to disqualify US a safe third country. #cdnimm #refugees #law #STCA

Govt - Says recommendations but simply recommendations and decision made within law not the same. #cdnimm #refugees #law #STCA

Noel CJ: Nobody recommended US be disqualified? Govt said can't say due to s 39 privileges. Nothing in govt to say we should go to Cabinet. This is outside of realm of JR - the recommendations. #cdnimm #refugees #law #STCA

Clerk of Privy Council Certificate (s 39) keeps info re recommendations unknown. Govt can't comment on it. Govt saying designation not repealed and no evidence in record to suggest #cdnimm #refugees #law #STCA

Noel CJ: What is the Attorney General's position on that? What are we to make of that? Did anyone form view that they should recommend to Cabinet that US should be disqualified. Am not getting an answer to that and am at a loss. #cdnimm #refugees #law #STCA

Govt: Based on record, nothing to suggest recommendations. #cdnimm #refugees #law #STCA

Stratas J: Do we just have an assortment of reports and odd review in the record? Govt: You do have all the reviews that were conducted and the monitoring reports synthesized from reviews. You don't have anything post close of evidence. #cdnimm #refugees #law #STCA

Stratas J: Fed Ct para 78 dec - redacted versions of reports were marked as exhibits to affidavit. Although content not in evidence, they do provide ev that reporting continued. Material not for truth of content but to show reviews are done? Govt objected to disclose docs.

Interesting that govt did not find the docs relevant and now the court has spent a lot of time today talking about these reviews. Ironic because it appears the court is placing much importance on this. #cdnimm #refugees #law #STCA

Stratas J: Interested in litigation history. Trying to figure out how docs arrived in the record.
IMO: Observers may remember there were contests re what evidence would be submitted at Fed Ct. You can listen to Migration Conversations Podcast episode w/ counsel Michael Bossin

Take note students. Preparation is key. Love how lawyers today know their material and calling forth tabs and doc locations off top of their heads for the panel of judges. #litigation #cdnimm #refugees #law #STCA

Govt recovered well from panel questions about record not providing evidence re reviews IMO. Would be good for opposing counsel to show gaps in record and also what the record counters but just my 2 cents! #cdnimm #refugees #law #STCA

Govt alternative argument - designation remains intra vires. (So if ct finds that they can revisit vires) #cdnimm #refugees #law #STCA

Govt fixated on timing re ultra vires. Ct has to make determination of when decision became ultra vires #cdnimm #refugees #law #STCA

Noel CJ: Is it not the nature of ongoing review? When looking at purpose of review, it is dynamic in nature and things can evolve and change so can there be a point in time to look at? Not tied to a particular point in time because ongoing obligation and recog fact things change.

Govt suggesting that one day could be intra vires and the next ultra. Noel CJ: Suggesting that disqualification at one point could lend to conclusion ultra vires. Is the scheme not intended to adjust due to change in circumstances? #cdnimm #refugees #law #STCA

Noel CJ: Assuming that there is gross reasons for disqualification & reviews ongoing but nothing takes place, you suggest nothing to review? Govt: on contrary. The time for the assessment, legality, would be at the time of removal. Cannot assess validity of reg post promulgation

Govt suggesting different kind of challenge - not vires framework but maybe Charter, maybe JR of admin dec? Noel CJ: No decision in an ongoing review? Govt saying internal procedure not subject to review.#cdnimm #refugees #law #STCA

Again, take note #law students how govt is characterizing what is a decision and what can be reviewed or assessed in the jurisdiction of this court. I'm reminded of my time as a student in @cforcese #admin law class talking about what are decisions. #cdnimm #refugees #law #STCA

Noel CJ: Till review leads to a reference to Cabinet then no decision made? Govt trying to focus court on the promulgation and also that the respondents raised a #Charter challenge as a way to review. #cdnimm #refugees #law #STCA

Stratas J: Reviews are not decisions and not reviewable so what case law supports this? Reviews under 102(3) - product of review is a report - implicit is determination not to go to GIC. So not reviewable? Govt doesn't have case in mind but relying on basic principle no decision.

This is interesting & I can't wait to hear what opposing counsel has to say on whether these are decisions. I think there is room for discussion. Trying to think of analogous situations ie recommendations of #cdnimm officers to Ministers on whether to find a person inadmissible.

Are there other situations where recommendations by review bodies to inform GIC or Ministers considered decisions? #LawTwitter any insight?

Govt again playing with 🔥asking court to take judicial notice of change of administration in the US. Very brazen IMO. #cdnimm #refugees #law #STCA

Take note students. Courts impatient when counsel repeat arguments esp in long proceedings and taking precious time of court. Know when to end the story and end on a good note. #law

Noel CJ: Simply to say that this review stems from a legislative obligation. Parliament has required that this review be ongoing to assure designation meets reqs. It's not out of the will of the Minister that this takes place. This is Parliament speaking. #refugees #law #STCA

Govt beating court over head over position that the reviews documents are not reviewable decisions. #cdnimm #refugees #law #STCA

Break till 3:15. See you all soon.

Govt is now providing 4 of their s 15 #Charter arguments. 1. Charter does not apply to foreign law. IMO if Canada is involved in a decision that affects an individual - this is at the #border - then it does. It's not as clear cut as Govt arguing.
#cdnimm #refugees #law #STCA

Also if govt is going to delegate #refugee assessments to foreign state, then we can look at legal scheme. Indeed, ct and govt lawyers just spent sooo much time talking about how there are reviews of the designation. This argument does not fly for me. #cdnimm #refugees #law #STCA

Govt argues US asylum law doesn't infringe - doesn't meet shocks the conscience test which looks to international law as a standard. IMO, the record provides evidence to the contrary. #cdnimm #refugees #law #STCA

Govt argues that there is a margin of appreciation is afforded in #refugee #law principles. Int'l law allows various approaches to implementing law. #cdnimm #STCA

Govt arguing when law is properly interpreted & applied, there isn't differentiated treatment for #gender-based claims and US allows more gender-based claims than other countries. IMO std is not compared to other countries. Shouldn't we look at effects not theoretical application

Govt trying to downplay evidence of US law professor and UNHCR in findings that there are issues re #gender-based claims. #cdnimm #refugees #law #STCA

Again govt pointing to "safety valves" to ask the Court to find no s 15 #Charter violation.
FYI, I have a paper in my head and I just need the pandemic to go away to write it.💀😂

In the meantime, you can review a great paper by Gerald Heckman @robsonhall on problematic s 7 #Charter analyses in #cdnimm #law cases:

journals.lib.unb.ca/index.php/unbl…

Also you can see Catherine Dauvergne's great piece on how the #Charter has failed non-citizens:

commons.allard.ubc.ca/fac_pubs/92/
#law #STCA

Govt arguing that #refugee #law permits responsibility sharing agreements. IMO, this does not mean we can't review whether that agreement meets our int'l law obligations. #cdnimm #STCA

The govt's args make me think ab how they are characterizing Canada's interactions with #refugee claimants as one outside their jurisdiction and the purview of the #Charter. This is contrary to much jurisprudence out there. Be wary of excluding based on #cdnimm status. #law #STCA

Stratas J If I heard correctly: I was less than pleased suspension should not be used to prepare a legislative response. Your primary submission would be potential on public interest if US is not designated? Govt agreed.

Govt has finished their submissions. Resuming with Respondents at 3:55 #STCA