Category: Charter Cases

The Court set out the test for sur place claims: 27 A refugee sur place is defined in the literature: The Convention refugee definition does not distinguish between persons who flee their country in order to avoid the prospect of persecution and those who, while already abroad, determine that they cannot or will not return by reason of the risk of persecution in their state of nationality or origin... In addition to claims grounded in either new circumstances or a dramatic intensification of pre-existing conditions in the country of origin, a sur place claim to refugee status may also be based on the activities of the refugee claimant since leaving her country. International law recognizes that if while abroad an individual expresses views or engages in activities which jeopardize the possibility of safe return to her state, she may be considered a Convention refugee. The key issues are whether the activities abroad are likely to have come to the attention of the authorities in the claimant's country of origin.... (The Law of Refugee Status, James Hathaway, Butterworths, 1991.) 28 The standard to be applied by the Board in assessing sur place claims has been stated by the Federal Court, in Ejtehadian v. Canada (Minister of Citizenship and Immigration), 2007 FC 158, [2007] F.C.J. No. 214 (QL). Justice Edmond Blanchard held: [11] The IRB's articulation of the test in a sur-place claim is incorrect. In a refugee sur-place claim, credible evidence of a claimant's activities while in Canada that are likely to substantiate any potential harm upon return must be expressly considered by the IRB even if the motivation behind the activities is non-genuine:

The Court held that the applicant was detained when he was held in a detention facility by CBSA and hence had a right to counsel. As a result of the breach of his right to counsel the exclusion order was set aside: 28 In the circumstances of the present matter, I adopt the conclusions of Justice MacKay in Dragosin at paragraph that the Applicant's right to counsel arose from the moment he was ordered to be detained which, in effect, was on July 8, 2006, when he was arrested by the CBSA Officer. This arrest triggered the duty to provide advice about, and to facilitate access to, legal counsel (Dragosin, above, at para. 16). Potential access to a telephone in the detention area, or merely asking the Applicant if he knew a particular lawyer that he wished to contact, was insufficient to discharge the obligation to facilitate access to legal counsel. The failure to do so in the circumstances of this matter was not consistent with the Applicant's section 10(b) Charter rights, and constituted a legal error (Dragosin, above, at paras. 16, 20).

The Court granted a stay of proceeding holding that the conduct of the US and the violations of Khadr's rights resulted in an abuse of process.

The court stayed a citizenship revocation proceeding due to delay as an abuse of process.

The Court held that the transcript of the previous proceedings was not reliable and hence could not be used as evidence unless Mr. Jaballah testified and then only to impugn his credibility.

The Court upheld the reasonable grounds threshold as constitutional within the context of security certificates.

The Court found that the restrictions on the issuance of the passport in the passport order prima facie violated the respondent's mobility rights but were justified under section 1.

The Court set aside a prison transfer refusal. The Court held that there was no violation of the Applicant's mobility rights but concluded that the exercise of discretion was improper because the Minister ignored evidence and made findings not supported by the evidence.

The Court upheld a refusal of a prison transfer finding no violation of section 6 and concluded that the exercise of discretion was proper dismissing the judicial review.

The Court found that the refusal to approve the transfer of the applicant for ten years violated the applicant's section 6 mobility rights under the Charter