Starting new thread for the Respondents in #STCA #law case. Stellar legal team with submissions starting with Andrew Brouwer a seasoned #cdnimm #refugee lawyer.
Oops, Jared Will will begin. Really enjoyed watching Jared in past cases for eg on #cdnimm #refugee #law #detention. Saw him live at #SCC on #Chhina case.
#Law students take note. I love the slow pacing of Jared Will, especially at the end of the long day. #STCA
Will reminding Ct that an error must be found in decision. Breach of s 7 has been made out. And a proper remedy has to be found for this breach. #STCA #law #cdnimm #refugees
Will: Unless Ct overturns s 7 breach findings, minimal remedy to be granted is finding US should not be designated. Agree that in assessing constitutionality of 101(1)(e) - need to look at statutory scheme as a whole. #STCA
Will: We agree that the reviews required should function as a safety valve and should prevent ongoing designation of unsafe countries. Fact however it didn't. The US remains designated despite designation violates #Charter rights of claimants. Safety Valve failed. #cdnimm #STCA
Will: Properly interpreted and applied, it is an adequate safety valve. But fact remains unsafe country designated contrary to #Charter. Remedy has to include striking provisions that allows such designations. #cdnimm #refuges #STCA
Will: If proper process is to judicially review the designation/review - that is precisely what we have done. Seeking declarations on JR that provision is unconstitutional. We are saying dec to maintain designation results in breach of #Charter. #STCA
Will: Not foreclosed on bringing challenge on Charter grounds #STCA
Stratas J: Characterizing facial challenge but you are characterizing this as JR on faulty review. Will: There is no decision to maintain the designation. The designation continues by inertia by the Min and GIC by effectively doing nothing. #STCA
Will: Should ct disagree w/ both parties finds that in fact is there are decs being made to maintain designation, in challenging constitutionality of designation, we are effectively seeking JR of designation. Both parties take positions that there is no dec required to maintain
Will: Not sure what you mean by "facial" challenge. Stratas J: an allegation that a section (designation) in purpose or effect is contrary or inconsistent by #Charter as opposed to one of the person's entering saying my s 7 rights personally violated. #STCA
Will: It is a hybrid. Because of facts on gd, provisions are unconstitutional. #STCA
Will: S 102(3) is robust provision & can and must be read in manner to give effect to int'l obligations it is meant to effect. Creates a review obligation & also makes clear that post-promulgation facts can and must be taken into consideration. #STCA
Excellent argument re why post-promulgation facts relevant. 👏#STCA
Will: Outcome of designation and failure to de-designate. Rule on books that is unconstitutional violating s 7 #Charter. Challenge that regulation. No matter how many ways it got or remains on books. Reality it cannot remain. #STCA
Will: Position of govt = nothing in review process is reviewable and post-promulgation facts can't be considered in vires review. This is in context in provision telling GIC hey, changing facts matter here. So govt arguing completely insulated/immune from review #STCA
Will: If ct thinks they are right, then s 102(3) not a meaningful safety valve. #STCA
Excellent argument showing that Parliament tags process with considering ongoing factors. #STCA
Will: Cross-appeal proper. We do seek a different disposition in originating applications respondents sought invalidity under s 15 and 159.3 (ultra vires). #STCA.
Stratas J: Does this issue really matter? Role of gatekeeper provision and jurisprudence of ct that once valid question stated then all issues are live. Implication that s 15 can be argued and does the cross-appeal matter? Will: If ct's position then no it does not matter. #STCA
Will: Case law on certification crystal clear - once a question is certified then a court open to decide any issue. Stratas J: Seems moot to me because s 15 is on the table and vires argument. Will: I agree. Argument red herring #STCA
Respondents start out strong. Jared Will does not disappoint. In that short submission, showing amazing advocacy skills: speaking slowly, providing succinct answers; being firm on the position. #STCA.
Hearing ended for the day. Heading outside! Take care all and see you tomorrow for Day 2!

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More from @thechaiyun

23 Feb
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.
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Prof Cairns Way and I are excited to share @uocommonlaw #CMLOrientation 2019 program here:… We have a stellar line up! #AdvantageFTX 1/
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