“Hey, hey! Ho, ho! Safe Third has got to go! Hey, hey! Ho, ho! Safe Third has got to go!”

by Karen Chen, Shelby Rooney and Anju Xing

Dozens gathered in front of the Federal Court in Toronto this Monday, Nov. 4 to chant along in support of a legal challenge against the United States’ designation as a “safe country” under the Safe Third Country Agreement (STCA). A challenge years in the making, Asper Centre students in the Immigration and Refugee Law working group worked to support the applicants’ legal team by providing research and advocating in the media for the Agreement to be set aside.

The STCA is an agreement between the United States and Canada that requires refugee claimants request refugee protection in the first safe country they arrive in. The power to designate safe third countries resides in section 102 of the Immigration and Refugee Protection Act (IRPA). Factors to be considered when determining a country’s designation include its compliance with the United Nations Refugee Convention and the United Nations Convention Against Torture, as well as its human rights record.

The Canadian government is required to “ensure the continuing review” of the above factors for each “safe” country. This monitoring framework enables Immigration, Refugees and Citizenship Canada to identify changes in policies and practices that would considerably weaken the level of human rights and refugee protection that the country designated as safe provides.

In December 2004, Canada declared the United States a “safe third country”. It is the only country to receive such a designation under the Agreement. Practically, the agreement precludes asylum seekers from seeking refugee protection in Canada if they have come from or previously landed in the United States.

Given political and policy shifts in the United States since the election of President Donald Trump and even before 2016, many refugee advocates argue it is no longer a safe third country. For example, the United States currently limits asylum for women fleeing from domestic violence to only very exceptional cases.  It also prosecutes asylum-seekers who enter the country from points other than official ports of entry, contrary to international law.[1] Moreover, evidence shows that many people – including children – are being arbitrarily detained in immigration detention centres, in poor conditions and with little or no access to legal counsel.[2] This deprives asylum seekers from the ability to have a fair hearing.  Thus, the Agreement should no longer preclude asylum seekers who come from the United States from applying for refugee protection in Canada.

In 2007, a previous challenge to the STCA by three organizations– the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches –was upheld at the Federal Court. However, this decision was overturned at the Federal Court of Appeal in 2008 on the grounds that in designating the US a “safe third country”, the Immigration and Refugee Protection Act only required the Canadian government to consider the factors listed in the Act; it did not require actual compliance with the UN Refugee Convention.

The current challenge to the STCA is being brought by three individual litigants and the three public interest organizations that brought the original challenge. They argue that the United States’ “safe third country” designation violates refugee rights under international law as well as section 15 and 7 rights guaranteed under the Canadian Charter of Rights and Freedoms. They also argue that the provision allowing the exemption ought to be struck down as ultra vires under administrative law.

Students from the Asper Centre’s Immigration and Refugee Law Working Group in 2018-2019 had the fantastic opportunity to hear from Erin Simpson, one of nine lawyers working on the legal challenge to the STCA. Simpson spoke to the students about the current situation in the United States, the status of the case, and what further information would be needed. This meeting prepared the students to research and prepare reports that were used for cross-examination in the case.

The work by students last year built on the research work of students in the 2017-2018 Asper Centre Immigration and Refugee Law Working Group which also helped Simpson with research in the development of certain arguments now being heard.

Throughout, students at the Faculty of Law’s Downtown Legal Services clinic in the Refugee and Immigration Division worked under the guidance of lawyer Prasanna Balasundaram to support the challenge by preparing memoranda on section 7 of the Charter, preparing for cross-examination, listening in on strategy meetings with the litigation team, keeping the files organized, and perhaps most importantly, supporting the individual litigant “ABC” and her family with issues arising in their day-to-day lives.

Challenges like this one depend on so many people coming together to fight for the rights-respecting, international law and Charter-compliant Canada we want. To have these arguments heard in Federal Court this week, it required the courage of the individual applicants whose lives were affected by the STCA, the hard work and dedication of the legal team and organizations advocating for the applicants, as well as the research and support of law students in the Asper Centre working groups and Downtown Legal Services clinic. As students, we were honoured to have contributed what we could and to have learned so much from being involved in this incredibly important work – work that many of us hope to continue to do and support for the rest of our careers.

[1] Canadian Council for Refugees, “Why we are challenging the USA as a “safe third country” in the Federal Court of Canada” (December 2017) at 1, online (pdf): Canadian Council for Refugees <ccrweb.ca/sites/ccrweb.ca/files/stca-contesting-overview.pdf>.

[2] Ibid

Karen Chen is a 3L JD Candidate at the Faculty of Law. She was a leader of the Asper Centre Refugee & Immigration Law working group in 2018-2019, and also worked in the Downtown Legal Services clinic.

Shelby Rooney is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

Anju Xing is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

First Nations Child Welfare: the Challenges of Overcoming Colonization and Removal

by Kylie de Chastelain

On October 28, 2019, the Indigenous Initiatives Office at the Faculty of Law hosted lawyers Maggie Wente and Sinead Charbonneau from Olthius Kleer Townshend LLP for a presentation entitled: First Nations Child Welfare Practice Post-Caring Society. Wente and Charbonneau provide legal representation and support to First Nations governments and communities as they navigate heavily bureaucratic, complex child welfare systems across Canada. Their presentation focused on the numerous challenges and opportunities for change that they have observed.

In 2016, the Canadian Human Rights Tribunal handed down what is colloquially known as the “Caring Society” decision. The Caring Society case was a complaint brought by Cindy Blackstock of the First Nations Child and Family Caring Society and the Assembly of First Nations (“AFN”) which alleged that the Canadian government was discriminating against First Nations children on reserves by allocating substandard and inequitable funding for child welfare services there. The Human Rights Tribunal held that discrimination was occurring through inadequate funding and also through a failure to provide culturally appropriate services. Further, the Tribunal held that Canada had not properly implemented Jordan’s Principle and ordered the Canadian government to rectify this.

Charbonneau provided an impassioned explanation of Jordan’s Principle, which is named for Jordan River Anderson; a child from Norway House, Cree Nation in Manitoba. Jordan was born with complex needs which required constant hospitalization and was transported away from his community to Winnipeg to receive treatment. When it was established that Jordan would not live very long, doctors recommended that he be transported back to his community with palliative medical supports. A long fight ensued between the federal and provincial government, with the federal government claiming that the province should cover Jordan’s costs as a healthcare matter, and the provincial government refusing to do so because Indigenous affairs are under federal jurisdiction. The matter was never resolved and Jordan died in hospital, never having returned home. Jordan’s Principle was developed by First Nations and the Caring Society in response to the discrimination and inadequate care Jordan experienced.

According to Charbonneau, Jordan’s Principle calls for substantive equality for First Nations children; not simply treating all children “the same,” but recognizing that First Nations children require additional supports and services in order to reach the same footing as non-Indigenous children. In the context of child welfare, the need for substantive equality is great. First Nations children come from a long colonial history of forced removal, racism, and abuse at the hands of the Canadian government. Today, when child welfare services interface with First Nations communities, this colonial legacy – and enduring discrimination – complicates efforts to assist families and children. As Wente and Charbonneau described, part of the problem is that the landscape is heavily bureaucratic. In addition to federal frameworks, there are First Nations child welfare services and provincial child welfare services that overlap and disagree about what will best serve Indigenous children. Moreover, First Nations organizations are often poorly funded, which makes it difficult for them to exercise jurisdiction even when they have it.

Wente explained that often, the only way for First Nations children to access services is to for them to become wards of the state. Wente has worked with several Innu communities in Newfoundland and Labrador that have been forced to put their children into care for this reason. In one case, Wente described, the mother of a suicidal child put him into care so that he could be hospitalized and access the mental health services he urgently required. However, the mother was not fluent in English, and when a representative from Newfoundland’s Department of Children, Seniors and Social Development came to complete the paperwork, they had the mother unknowingly sign documentation that stated the child was no longer safe in the home and needed protection. Presently, the child is eager to return home, but because the mother electively signed paperwork admitting him into care, it will be incredibly difficult to return him to his family. According to Wente, cases like these are far from rare, and they pose huge obstacles for First Nations communities.

Ultimately, Wente and Charbonneau shared a brief glimpse into what it means to work for reconciliation and equality within an enduringly-colonial and bureaucratic system. Above all, it is clear that Canada must make tremendous improvements where First Nations children and child services are concerned.  In this regard, it remains to be seen to what extent the recently passed bill An Act Respecting First Nations, Inuit and Métis Children, Youth and Families, which was co-developed with Indigenous partners and affirms Indigenous peoples’ right to jurisdiction over child and family services, will make a consequential difference in the lives of First Nations children in the future.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

RESOURCES:

Find links to the Canadian Human Rights Tribunal decisions in the Caring Society case below and an Information Sheet on the Canadian Human Rights Tribunal Decisions on First Nations Child Welfare and Jordan’s Principle by the Caring Society.

2016 CHRT 22016 CHRT 10, 2016 CHRT 162017 CHRT 142018 CHRT 4

Bill C92 – An Act Respecting First Nations, Inuit and Métis Children, Youth and Families

Recapping Brandon Garrett’s Constitutional Roundtable on Wealth, Equal Protection, and Due Process

by Kylie de Chastelain

On Wednesday, October 2nd, 2019 the Asper Centre hosted Professor Brandon Garrett for a Constitutional Roundtable titled “Wealth, Equal Protection and Due Process.”

Professor Garrett presented work from a recent paper exploring “equal process” – a term he coined to describe the intersection between the Equal Protection and Due Process Clauses in the United States Constitution. “Equal process” claims have already arisen from Supreme Court and lower court cases where the main issue is wealth inequality, but courts have been wary of engaging with constitutional issues on a cumulative or intersectional basis. Garrett argues that the “equal process” approach should be more widely implemented to help address a series of pressing civil right issues, including the constitutionality of fines, loss of voter rights or driver’s licenses, and detention for inability to pay cash bail.

To illustrate the damaging effects of “punishing the poor,” and the need for an “equal process” approach, Garrett presented findings from a compelling empirical research study he conducted at Duke Law’s JustScience Lab. The study examined driver’s license suspensions in North Carolina from 1996-2018. In North Carolina, licenses can be suspended for a failure to pay traffic tickets or failure to appear in court. Many states have similar legislation. However, in North Carolina, as elsewhere, insufficient public transit options make driving a necessity. The loss of one’s license can have substantial material effects on livelihood and employment.

Garrett and his team found that approximately 1 out of 7 driving-age individuals in North Carolina currently have suspended licenses, for a total of 1,225,000 active suspensions. Of these, 827,000 are for a failure to appear in Court, 263,000 are for a failure to comply with orders to pay traffic fines or court fees, and 135,000 are for both. This data was further analyzed against race and class metrics to find that driver’s license suspensions occur disproportionately in low-income and non-white populations. In other words, license suspension and legal procedure of this kind punish people for poverty; something the Equal Protection Clause explicitly aims to prevent.

Historically, U.S. courts have been unwilling to examine constitutional issues such as these in creative ways, preferring to examine constitutional matters in isolation. This clause-by-clause tactic, Garrett argues, fails to adequately address the complex issues arising from poverty. An interdisciplinary approach yields better results.

For example, in Bearden v Georgia, 461 U.S. 660 (1983), a man who was sentenced to probation and ordered to pay $750 in fines but could not afford to do so eventually had his probation revoked. The Bearden Court explicitly merged Equal Protection and Due Process analyses in this case, noting that a classic procedural approach – where fine amounts are automatic regardless of ability to pay – was inherently unjust. Instead, the Court examined why the man could not pay and explored whether alternative measures could equally serve the state’s interest. Implementing a delayed payment plan, reducing the fine, or ordering time in public service could all fulfill requirements for punishment and restitution without unduly compounding the effects of poverty in this man’s life. Like this, the “equal process” approach could empower courts and litigators to raise joint claims and establish more just modes of penalty.

In this way, Professor Garrett argues, Bearden provides courts and lawyers with a strong basis for raising and trying joint claims. Adopting an “equal process” approach could empower courts to re-examine their objectives and interests in handing down punishment to society’s most vulnerable.

Following Professor Garrett’s presentation, Professor Vincent Chiao offered his comments and insight into the Canadian context. R v Boudreault, 2018 SCC 58 is a recent notable case where the Supreme Court of Canada struck down the mandatory victim surcharge provision of the Criminal Code on the basis that it was unconstitutional. As Chiao noted, the Court’s analysis in Boudreault did not focus on due process or equality but on gross disproportionality and cruel and unusual punishment as per s. 12 of the Charter.

The decision in Boudreault marked a clear departure from R v Tinker 2017 ONCA 522, where the Court reinstated victim surcharges against appellants on the basis that they were “rationally connected” to aims regarding remedy for criminal activities and accountability to victims. In Tinker, s. 12 arguments addressing cruel and unusual punishment were dismissed. But in Boudreault, as in Bearden, the Court acknowledged that victim surcharges compound the effects of poverty, effectively creating ongoing debts that are impossible for offenders to repay. Chiao emphasized that although the result in Boudreault was encouraging, Professor Garrett’s “equal process” approach could help elucidate intersectional, equality-focused jurisprudence in Canada moving forward.

Kylie de Chastelain is a 1L JD student at the Faculty of Law and is the current Asper Centre work-study student.

A historical first for the SCC

The Asper Centre is intervening in the upcoming Supreme Court of Canada case of Conseil scolaire francophone de la Colombie Britannique v British Columbia (Éducation) relating to whether British Columbia failed to adequately fund and support French minority language education.

Section 23 of the Charter guarantees the right to minority language education. In British Columbia, the Conseil scolaire francophone de la Colombie-Britannique (B.C.’s French language school board) and co-plaintiff parents brought a lawsuit against the Ministry of Education to obtain the financing required in order to build schools that are equivalent to English-language schools. The trial judge said the province breached the French-speaking community’s rights under section 23 of the Charter in several areas of B.C. The Court of Appeal said courts needed to be practical when looking at section 23. Giving the school board what it wanted would cost too much and section 23 of the Charter didn’t mean the province had to provide all the school facilities right away. The school board appealed. In this case, the Supreme Court will decide how courts should deal with minority language rights including what governments must do when there aren’t enough students to justify offering full school services in the minority language. Another issue is whether courts should look at costs when deciding whether a breach of section 23 can be allowed.  Further, the court will have to decide whether the province should have to pay damages to the school board. This decision could affect other minority-language communities across Canada.

The focus of the Asper Centre’s intervention is on the availability of Charter damages and the appropriateness of the application of the Mackin principles to damages under s.24(1) of the Charter for unconstitutional policy decisions. Read our factum here.

The SCC will hear this case on September 26th 2019 in Winnipeg Manitoba, in Treaty One Territory. This is a historical first, where the SCC will sit outside of Ottawa.

Oral arguments for the Asper Centre will be presented by University of Toronto Professor of Law and Prichard-Wilson Chair of Law and Public Policy, Kent Roach (pictured above).

Freedom of expression in an election context: A purposive approach

by Keely Kinley

On September 19, 2019, the Ontario Court of Appeal dismissed the City of Toronto’s legal challenge against the Province of Ontario for making unilateral changes to the size and structure of Toronto’s city council midway through last year’s municipal election period (Toronto (City) v. Ontario (Attorney General), 2019 ONCA 732). In a 3-2 decision, the Court of Appeal held that the province had the “legitimate authority” to reduce council from 47 to 25 seats, and that doing so was constitutional even in the middle of an active election (para 6).

At trial, the Ontario Superior Court ruled that Bill 5 – the legislation that changed Toronto’s ward structure – “substantially interfered” with both candidates’ and voters’ freedom of expression contrary to s. 2(b) of the Charter (Toronto et al v. Ontario (Attorney General), 2018 ONSC 5151). Specifically, the court found that Bill 5 interfered with candidates’ freedom to effectively communicate their political messages to voters and, by doubling the population size of City wards, also interfered with electors’ ability to express political views through voting. Nine days after the ONSC decision was released, the province won a stay of the ruling and the election proceeded with 25 wards on October 22, 2018.

On appeal, the court found that Bill 5 did not infringe the s. 2(b) rights of either candidates or voters. Justice Miller, writing for the majority, emphasized that s. 2(b) of the Charter protects against interference with expressive activity, not interference with expressive activity’s intended result; consequently, “legislation that changes some state of affairs (such as the number of electoral wards) such that a person’s past communications lose their relevance, and no longer contribute to the desired project (election to public office), is not, on that basis, a limitation of anyone’s rights under s. 2(b)” (para 41).

All five judges agreed that the Province had the constitutional authority to alter the structure of Toronto’s City Council, that legislation cannot be stuck down solely on the basis of unwritten constitutional principles, and that Bill 5 did not infringe voters’ 2(b) rights. However, MacPherson and Justice Nordheimer decried Miller’s characterization of the expressive activity affected by the ward changes as “a person’s past communications” as overly narrow and found that candidates’ 2(b) rights were infringed by the mid-election enactment of Bill 5.

MacPherson’s fiery dissent called for a purposive approach to freedom of expression in the election context and identified the 2(b) right implicated in this case as the “right of all electoral participants to freely express themselves within the terms of the election after it had begun” (para 128). Justice MacPherson cited para 1 of the Asper Centre’s factum to support this view: “The Charter’s guarantee of freedom of expression is a key individual right that exists within and is essential to the broader institutional framework of our democracy. In the election context, freedom of expression is not a soliloquy. It is not simply the right of candidates and the electorate to express views and cast ballots. It expands to encompass a framework for the full deliberative engagement of voters, incumbents, new candidates, volunteers, donors, campaign organizers and staff, and the media, throughout a pre-determined, stable election period.”

The dissenting judgment suggests that free expression in the election context requires that an election’s basic terms not be “upended mid-stream” (para 123). Reducing the size of city council during an active election made it difficult for volunteers, voters, donors, and commentators to carry on expressing themselves “within the established terms of [the] election then in progress” (para 128), and this is why Justice MacPherson’s finding that candidates’ 2(b) rights were infringed turned on the timing of the Bill; even though the province never directly curtailed expressive activity, it effectively “blew up the efforts, aspirations and campaign materials of hundreds of aspiring candidates” when it altered the ward structure in the middle of the election period (para 136).

While the majority did not adopt the Asper Centre’s broad, purposive view of freedom of expression in the election context, this was a successful intervention for the Centre. Its arguments were cited with approval in both judgments and provided important international context to this difficult case of first instance.

As of January 2019, Toronto City Council has instructed staff “to pursue a leave to appeal application to the Supreme Court of Canada in the event the Province is successful on its appeal at the Court of Appeal” (see the City’s public statement here: http://wx.toronto.ca/inter/it/newsrel.nsf/11476e3d3711f56e85256616006b891f/d354c2f99405923b8525847a0056fff8?OpenDocument); staff are now in the process of reviewing the court’s decision in detail. If the City appeals, the 3-2 split at the Court of Appeal and the national significance of the issues raised in this case might improve the odds of the Supreme Court of Canada granting them leave.

Keely Kinley is a 2L JD Student at the Faculty of Law. She was the 2019 Asper Centre summer research assistant and is currently leading the Asper Centre’s Climate Justice student working group.