CARL in the Courts

The Canadian Association of Refugee Lawyers has left quite a mark on the legal landscape since coming into existence in September of 2011. CARL has been granted leave to intervene in four Supreme Court of Canada (SCC) decisions, creating a positive impact on refugees’ legal rights in our country. CARL teamed up with the Canadian Council for Refugees (CCR) to intervene in two of these cases: Agraira v. Canada (Minister of Public Safety and Emergency Preparedness) and the momentous Canadian AG v Downtown East Side Sex Workers appeal. CARL also acted independently as intervener in Ezokola v. Canada (Minister of Citizenship and Immigration) and Pham v. HMQ.

The Downtown Eastside Sex Workers United Against Violence decision, released on September 20th 2012, was a victory for CARL and public interest groups as a whole. The decision effectively rewrote the third element of the public interest standing test - a sticking point that has historically hindered access to justice for many vulnerable populations including refugees. The test’s previous requirement that “no other reasonable and effective manner in which the issue may be brought to court” has now been replaced with a more contextual approach allowing courts to consider if it is realistic and efficient for an individual to challenge the constitutionality of the legislation on their own. This decision opens important avenues for justice: disenfranchised groups who lack access to courts – including refugees – now have potential voices who can speak on their behalf against institutionalized injustices. CARL is proud to have played a role in this landmark decision. Canadian refugee law has gone through radical changes recently, and the new public interest standing test will better allow CARL to challenge the constitutionality of the new laws on behalf of refugee claimants. Read the full judgment here

On October 18, 2012 CARL intervened jointly with CCR in Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), represented by John Norris and Andrew Brouwer.  CARL and CCR were concerned with the impact that overbroad inadmissibility provisions have on refugees in Canada. In particular, CARL raised the issue of the ineffectiveness of the relief provision in light of the Federal Court of Appeal’s interpretation of “detrimental to the national interest.” CARL’s members and their clients have an interest in ensuring that the inadmissibility scheme set out in s. 34(1) and (2) of the Immigration and Refugee Protection Act is consistent with the Charter and relevant provisions of international refugee and human rights law. View the webcast of the hearing here.

Appearing independently for the first time, CARL intervened before the SCC in Ezokola v. Canada (Minister of Citizenship and Immigration) on January 17th, 2013. CARL was represented by Jennifer Bond, Carole Simone Dahan, Andrew Brouwer, and Aviva Basman, with Jennifer Bond acting as lead counsel. Work on this file was also supported by members of uOttawa’s Refugee Law Research Team (RLRT): Emily Bates, Michelle Bloodworth, Maya Borooah, Meghan Fougere, and Dan Meester. The case concerns the interpretation of Article 1F(a) of the 1951 Refugee Convention, which excludes people from refugee protection where there are serious reasons for considering that they have committed a crime against peace, a war crime, or a crime against humanity. CARL argued that Canada’s approach to exclusion under 1F(a) requires reformulation. CARL advocated for a fair and principled approach to be applied when interpreting this provision, and offered a fourpart framework to aid in the decision-making. The proposed framework aligns exclusion with established principles of international criminal law while simultaneously safeguarding the purpose of the Refugee Convention generally and Article 1F(a) in particular. Read more about CARL's position here

On January 18, 2013 CARL intervened in Pham v. (HMTQ), represented by John Norris and Melinda Gayda. In this case the SCC was asked to consider whether criminal or appellate courts should take the unintended consequences of criminal sentences into consideration, particularly when they relate to the immigration status of the offender. In a decision handed down on March 14th, 2013, the Supreme Court allowed the appeal, noting, “A sentencing judge may exercise his or her discretion to take collateral immigration consequences into account, provided that the sentence ultimately imposed is proportionate to the gravity of the offence and the degree of responsibility of the offender.” Read the full judgment here.

Most recently, together with Canadian Doctors for Refugee Care and three individual plaintiffs, CARL filed a lawsuit asking the Federal Court to declare that the federal government health cuts to refugee claimants are unconstitutional and illegal. Read about it here

Thanks to Meghan Forhan, University of Victoria CARL Chapter, for her contribution on this piece.