Federal Court

Constitutional Law

Section 110(2)(d.1) of Immigration and Refugee Protection Act violates s. 15(1) of Charter

Section 110(2)(d.1) of the Immigration and Refugee Protection Act denies access to Refugee Appeal Division for all refugee claimants from any country designated by Minister of Citizenship and Immigration. Applicants challenged constitutionality of s. 110(2)(d.1) and mechanism for selecting which countries to designate, arguing that denying refugee claimants from designated countries of origin an appeal to refugee appeal division violates ss. 7 and 15(1) of Canadian Charter of Rights and Freedoms. Primary applicants are refugee claimants from designated countries of origin. Appeal division rejected applicants’ claims on basis there was adequate state protection. Constitutional challenge brought by way of appeal to appeal division. Appeal division dismissed appeals on basis it did not have jurisdiction by virtue of s. 110(2)(d.1). Applicants applied for judicial review. One of principal goals of designated country of origin regime was to deter abuse while preserving right of eligible refugee claimants to have fair hearing. Designated country of origin claimants face several differential procedures, including delayed work permit eligibility and pre-removal risk assessment, different time limits, lack of appeal to appeal division, removal orders coming into force sooner and no automatic stay of removal when seeking judicial review. Differential treatment is clearly distinction on basis of national origin as it is made without regard to personal characteristics of claimants or whether that designated country of origin is actually safe for them; it is discriminatory on its face and serves to further marginalize, prejudice and stereotype refugee claimants from designated countries of origin. Introduction of s. 110(2)(d.1) has deprived refugee claimants from designated countries of origin of substantive equality. Access to appeal division is substantial benefit being denied to claimants from designated countries of origin. Section 110(2)(d.1) of act violates s. 15(1) of Charter. Denial of appeal to appeal division for designated country of origin claimant is not reasonable limit prescribed by law that can be demonstrably justified in free and democratic society. While denial of appeal to appeal division by designated country of origin refugee claimants is prescribed by law and Canada had pressing and substantial objective in effecting immigration reform, s. 110(2)(d.1) is not minimally impairing. Respondents did not prove that absolute bar is least drastic means by which it could satisfy objectives. Denying appeal to appeal division to some claimants based on country of origin is serious impairment of right to equality. Section 110(2)(d.1) inconsistent with s. 15(1) of Charter and has no force and effect.

Z. (Y.) v. Canada (Minister of Citizenship and Immigration) (Jul. 23, 2015, F.C., Keith M. Boswell J., File No. IMM-3700-13, IMM-5940-14) 255 A.C.W.S. (3d) 958.

cover image


Subscribers get early and easy access to Law Times.

Law Times Poll

The Law Society of Ontario is in the midst of a major overhaul of the role of paralegals in family law — and a proposal on the issue could become an imminent issue for the regulator’s newly elected benchers. Do you agree with widening the scope of family law matters that paralegals can address?