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A. INTRODUCTION
1. The. Court has invited written submissions from the parties on whether the
Canadian Charter of Rights and Freedoms (Constitution Act, 1982) (SO) 1982,c. 11
(UK) Schedule B, Part I) (the "Charter") applies to the applicants. as non-citizens
residing outside of Canada.
2. The Supreme Court of Canada (the "Sec") has considered the extra-territorial
application of the Charter or, more specifically, the application of the Charter to the
actions of Canadian officials outside of Canada. However, the sec has not determined
definitively the related but separate issue of the extent to which a. non-Canadian citizen
residing outside of Canada is entitled to assert Charter The Federal Court of
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Appeal (the "Court of Appeal") and this Court have also considered the application of
the Charter to the actions of Canadian officials outside of Canada. Some of these
decisions, as well as other earlier decisions by the Court of Appeal and this Court, have
held that non-citizens residing outside of Canada are entitled to the protection of the
Charter only in limited circumstances,
3. From a review of the jurisprudence, it is evident that the determination of the
Charter's application to non-citizens outside of Canada and their entitlement to claim
Charter protection is fact-driven. All of the circumstances in a given case must be
examined before it can be determined whether the Charter applies.
4. In the particular circumstances of this case, the Respondent, the Minister of
Citizenship and Immigration (the "Minister"), does not challenge the Applicants' standing
to ask this Court to review section 87.4 of the Immigration and Refugee Protection Act
. (the -IRPAtI
) on Charter grounds. The Applicants are directly affected by section 87.4,
whiCh terminated their federal skilled worker applications by operation of law and they
started these judicial review proceedings as contemplated by the IRPA and the Federal
Courts Act. Practically speaking, the Applicants represent many other applicants whose
FSW applications were terminated by section 87.4. The Minister understands that at
least one of these represented applicants is physically present in Canada.
5. Sectfon87,4 is subject to the Charter and this Court is entitled to review the
constitutional propriety of section 87.4. The application of the Charter in this .case does
not raise considerations of intemationallaw and comity of nations since all of the
Mactionll to terminate the Applicants' FSW applications took place within Canada. This
is not to say that the Charter applies in every case where a Canadian law affects a noncitizen overseas. All cases must be considered in their own factual contexts.
6. Even though the Minister is not challenging the Applicants' standing to seek
judicial review of section 87-4 on Charter grounds in the particular circumstances of this
case. the Minister maintains that the Applicants have not demonstrated that the
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particular Charter rights that they are asserting, namely section 7 and 15 rights, are
engaged or infringed by section 87.4 of the IRPA for all of the reasons set out in the
Minister's earlier written and oral submissions. Accordingly. the broad question of the
extent to which the Applicants, as non-citizens residing outside of Canada, are entitled
to seek review of section 87.4 on Charter grounds may not have to be determined in
this case.
B. RELEVANT JURISPRUDENCE
7. The sec, the Court of Appeal and this Court have considered the extra-territorial
application of the Charter in several recent cases. These cases have dealt with the
application of the Charter to the actions of Canadian officials outside of Canada. They
have not dealt with the application of the Charter in the context of .challenges to
Canadian legislation by foreign nationals. The issue of whether the actio liS of Canadian
officials in a foreign state are subject to the Charter is a related but separate issue from
whether a foreign national can assert Charter rights or challenge Canadian legislation
on Charter grounds. However. these cases still have relevance to the question of
whether and when a foreign national outside of Canada can claim Charter protection.
B. MINlSTER IS NOT CHAL..LENGING THE APPUCANTSJ STANDING TO RAISE
CHARTER ISSUES
31. What emerges from a review of the jurisprudence is that the question of the
Charter's application to foreign nationals outside of Canada is fact-driven. As the Court
of Appeal wrote in Amnesty International, all of the circumstances in a given situation
must be examined before it can be said that the Gharter applies.
32. The Minister does not challenge the Applicants' ability to seek judicial review of
section 87.4 of the IRPA on Charter grounds in the particular circumstances of this
case.
33. The Applicants are directly affected by section 87.4 since the provision
terminated their particular FSW applications by operation of law. They submitted FSW
applications in accordance with the law as it stood at the time and Parliament
subsequently Changed the law with the specific intent of terminating certain described
FSWapplications. The Applicants' FS'N applications were among those described.
34. Practically speaking, the Applicants represent many other applicants who also
had their FSW applications terminated by operation of law by section 87.4. It is the
Minister's understanding that at least one of the represented applicants may be
physically present in Canada. The jurisprudence indicates that physical presence in
Canada may be a sufficient nexus or connection to Canada to allow foreign nationals to
claim the protection of the Charter.
Kunan v. Minister of Citizenship and Immigration (Imm-9483-12), Certified
Tribunal Record.
35. The Applicants started judicial review applications to challenge the termination of
the FSW application pursuant to section 72{1) of the IRPA and section 18,1 'of the
Federal Courts Act. The Applicants are seeking, among other relief, a declaration
pursuant to section 52 of the Constitution Act, 1982, that section 87.4 is inconsistent
with the Charter and of no force and effect.
36. The Minister does not dispute that section 87.4 is subject to the Charter as it is
within the authority of Parliament Section 32 of the Charter provides that it applies to
the Parliament and government of Canada in respect of all matters within the authority
of Parliament. In turn, section 52 of the Constitution Act, 1982, provides that if a
provision is inconsistent with the Charter. the provision is, to the extent of the
inconsistency, of no force or effect.
Chatter of Rights and Freedoms, section 32.
Constitution Act, 1982. section 52.
37. As acknowledged by the Minister in his earlier submissions, the Court is entitled
to review the constitutional propriety of section 87.4 under the tRPA and the Federal
Courts Act.
38. Finally, this case is concerned with Canada's prescriptive or legislative
jurisdiction to Make laws rather than its enforcement jurisdiction. This case is not
concerned with the extra-territorial application of the Charter to the actions of Canada's
officials in a foreign state or Canada's jurisdiction to enforce its laws outside of Canada.
The Applicants' FSW applications were terminated by of law, All of the
<laction" taken to terminate the Applicantst FSW application was taken inside Canada
and there was no action by Canadian officials outside of Canada. Accordingly, there is
no "extra-territorial" application of the Charter and considerations of international law
and comity of nations do not arise in this case as the Charters application has no
impact on the sovereignty of a foreign state.
39. As noted above, this is not to say that the Charter applies in every case where a
Canadian law affects a non-citizen overseas. All cases must be considered in their own
factual contexts. It is not necessary for the purposes of this proceeding to determine
whether considerations of international law and comity of nations or
circumstances would operate to preclude the Charter's application in other cases.
Further, given the multiple variables and factual nuances involved in a given case. it
would be preferable to address the broader question of the Charter's applicability to
foreign nationals abroad as it arises in specific cases.
MacKay v. Man;toba. [1989] 2 SCR 357 at para. 9.
Canadian Council for Refugees v. Canada, [20081 FCJ No.1 002 at para.
99.
Tremblay v. Daigle, [1989]2 SCR 530 at 571.
C. THE CHARTER RIGHTS BEING ASSERTED BY THE APPLICANTS ARE NOT .
& m_ "
ENGAGED ON THESE FACTS
40. Even though the Minister is not challenging the Applicants' standing to seek
judicial review of section 87.4 on Charter grounds in the particular circumstances of this
case, the Minister maintains that the Applicants have not demonstrated that the
particular Charter rights that they are asserting, namely section 7 and 15 rights, are
engaged or infringed by section 87.4 ofthe IRPA for all of the reasons set out in the
Minister's earlier written and oral submissions.
41. As submitted by the Minister in his earlier submissions, the interests protected by
section 7 of the Charter are not engaged in the present case. The life, liberty or security
of the person interests do not encompass the interest of a foreign national in obtaining
permanent resident status in Canada 1n the FSW class. The most fundamental principle
of immigration law is that non-citizens do not have an unqualified right to enter or
remain in Canada. Section 87.4 does not place the Applicants' life at risk so as to
enga'ge section 7 of the Charter. Even if section 87.4 did engage section 7 Charter
interests. there would be no infringement of section 7 - fundamental justice does not
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preclude retrospective legislation, nor is section 87.4 arbitrary or grossly
disproportionate.
,
Respondent's Consolidated Further Memorandum of Argument, pp. 41 -
43.
42. Section 87.4(1) also does not engage or infringe section 15 of the Charter
because it does not distinguish on the basis of an enumerated or analogous ground.
The Applicants have not shown that the provision distinguishes between or adversely
affects individuals on the basis of national origin. Hundreds of thousands of persons
from the regions that are alleged to be adversely affected, namely Asia, Africa and the
Middle-East, entered Canada as economic immigrants between 2002 and 2011. Section
87.4 does not draw any distinctions on the basis of national origin. The true bases of the
distinctions drawn by the provision - the date of application and stage of processing
reached - are not analogous grounds. Furthermore, any distinction or adverse effect is
not discriminatory - it does not perpetuate any prejudice or stereotype on the basis of
national origin.
Respondent's Consolidated Further Memorandum of Argument, pp. 27 -
41.
43. Finally, even if section 87.4(1) of the IRPA were to infringe section 7 or 15 of the
Charter, such an infringement would be justified under section 1.
Respondent's Consolidated Further Memorandum of Argument, pp. 44-
47.
