S3CA Challenge: Hypocrisy In Federal Gov’t Filings, Toronto V.S. Vancouver

1. Quotes From Toronto Gov’t Filings

2. Previous Posts On Case

CLICK HERE, for abuse of Safe Third Country Agreement.
CLICK HERE, for Prothonotary strikes out Statement of Claim.
CLICK HERE, for Uppity Peasants on the moral arguments.
CLICK HERE, for arguments to appeal S3CA dismissal.
CLICK HERE, for reply submissions in S3CA appeal.

3. Context Of This Article

This case involves the joint application for judicial review. These cases (for which arguments were just heard in Toronto) involves applicants trying to strike down the Safe Third Country Agreement.

If you have been following this site at all, you will know that a challenge has been launched in BC to close the “loophole” in the agreement. This loophole, in effects, allows fake refugees to jump the queue by GOING AROUND official border ports.

4. Gov’t Defends S3CA (In Toronto)

The Canadian government on Friday denied that the rights of any refugees are threatened by a U.S.-Canada agreement that compels asylum seekers trying to cross the border into Canada to first apply for sanctuary in the United States.

Under the Safe Third Country Agreement between the two neighbours, asylum seekers at a formal border crossing traveling in either direction are turned back and told to apply for asylum in the country they first arrived in.

Lawyers for unnamed refugees who had been turned away at the Canadian border are challenging the agreement, saying the United States does not qualify as a “safe” country under U.S. President Donald Trump.

However, the Canadian government argued in its submission that its “continued reliance on the regime is lawful and meets its Charter and international law obligations.”

“There’s no rights at stake here,” government lawyer Lucian Gregory told the federal court.

The court challenge comes as Canada seeks to stem the human tide of asylum seekers that has flowed into the country over the past three years. Trump was elected in 2016 after promising in his campaign to crack down on illegal immigration.

That’s right. The Trudeau Government tells a Toronto Court that the Safe 3rd Country Agreement is necessary to protect its borders, and does not discriminate on any human rights grounds.

Also, that same Government is telling a Vancouver Court that the Plaintiff/Moving Party has no right to attempt to close the loophole in the agreement.

In case any real journalists would like to learn more about the cases, these are the names and court files of the people involved.

MOHAMMAD MAJD MAHER HOMSI ET AL v. MCI ET AL
Court File: #IMM-775-17

NEDIRA JEMAL MUSTEFAv. MIRC ET AL
Court File: #IMM-2229-17

THE CANADIAN COUNCIL FOR RFUGEES ET AL v. MIRC ET AL
Court File: #IMM-2977-17

5. Gov’t: Open Court Needed (Toronto)

An interesting development in the case: The Federal Government opposed efforts by these “refugee claimants” to have their names redacted. In that case, only their initials would have been posted. The Government — in this case — values having an open court system.

6. Gov’t: No Loophole In S3CA (Vancouver)

These quotes are from the Government’s Motion to Strike, filed on May 22, 2019. In short, the lawyer claimed that since I was not a refugee claimant, I had no real interest or stake in the matter. Furthermore, there apparently was no loophole, and this poor wording was written in intentionally.

7. Rule 221: Motions To Strike

Striking Out Pleadings
Marginal note:
Motion to strike
221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it
(a) discloses no reasonable cause of action or defence, as the case may be,
(b) is immaterial or redundant,
(c) is scandalous, frivolous or vexatious,
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court,

and may order the action be dismissed or judgment entered accordingly.
Marginal note:
Evidence
(2) No evidence shall be heard on a motion for an order under paragraph (1)(a).

From the Federal Court Rules. Now, I am no expert on the matter, but filing contradictory, or at least incoherent or illogical pleadings should be grounds to strike out a defense. We shall see how it goes.

8. Two Courts, Two Priorities

The above is only a snapshot of what is going on, but the point should be clear. The Government is telling the Toronto Court that the Safe Third Country Agreement is necessary to protect our borders, and that not anyone can just walk in.

By contrast, that same Government is telling a Vancouver Court that there is no loophole to worry about, and that private citizens have no right to demand they enforce our laws and borders.

2 cases, 2 completely different responses.

Reply Arguments In Appeal Of Dismissal To S3CA Challenge

1. Quotes From Gov’t Defense Of Dismissal

2. Previous Posts On Case

CLICK HERE, for abuse of Safe Third Country Agreement.
CLICK HERE, for Prothonotary strikes out Statement of Claim.
CLICK HERE, for Uppity Peasants on the moral arguments.
CLICK HERE, for arguments to appeal S3CA dismissal.

3, Text Of Plaintiff’s Reply

WRITTEN SUBMISSIONS

(1) To avoid rehashing the entire written submissions section in the original Motion Record, this will be limited to 5 follow up questions for the Court to consider.

ISSUES

  • Should “due diligence” be required before making rulings?
  • To what degree should court officials be able to decide what cases are important?
  • What role should Prothonotaries have in striking out documents?
  • Should the government be allowed to submit conflicting, or incoherent pleadings?
  • Does Canada owe an obligation (beyond S3CA) to protect its borders?

(2) The above questions are to aid the Court in determining whether the original ruling should be allowed to stand, and the bigger issues at stake here.

Should “due diligence” be required before making rulings?

(3) Part of the appeal is on the grounds that Prothonotary Milczynski made overriding palpable error in the findings that claims of mass illegal crossings were just “opinion” and “unsupported”. The defence suggests that there was no reason to have submitted the evidence affidavit in the motion record.

(4) Where was the opportunity to submit proof of this?
First: Evidence is not supposed to be submitted with the Statement of Claim.
Second: Evidence is not allowed in Rule 221 motions to strike.

(5) So where exactly was the opportunity to prove any of the allegations? Remember, the standard of review for findings of fact is “overriding palpable error”. Unless this can be demonstrated, the default position is to “give deference” to the lower court ruling.

(6) So yes, it was necessary to submit the evidence affidavit with the motion record. This was the first opportunity to have this evidence submitted, and it shows irrefutably that Prothonotary Milczynski was completely wrong about Roxham Road crossings. So yes, it is important to the course of justice.

(7) Fact is, illegals have been crossing the Canada/U.S. border for years, particularly at Roxham Road in Quebec. This is public information, and has been in the media fairly regularly. There is a “loophole” in the agreement, in that simply going around border ports allows entry into Canada.

(8) Prothonotary Milczynski seems not to have been at all aware of this, despite the media attention. Instead, the allegations in the Statement of Claim were labelled as “opinions” and “bald face assertions”. Even a minimal amount of research (even a Google search) would have immediately found a wealth of media, photographic and video evidence corroborating every assertion made in the Statement of Claim.

(9) The affidavit contained only a tiny piece of the evidence available to prove the Plaintiff’s claims. No one, with any seriousness, can deny the hordes of illegals crossing into Canada. Again, the loophole (not any intended outcome), was that it doesn’t apply BETWEEN official border ports.

(10) In my view, this falls far short of what should be considered acceptable by a Court official. If a Prothonotary or Judge is going to call a Plaintiff’s statements “opinion”, then some due diligence should be done. Prothonotary Milczynski committed overriding palpable error in those findings, and the affidavit should outweigh the default position to “give deference”.

(11) While it is true that Court Officers have a heavy workload, there must be some due diligence performed before declaring a Statement of Claim to be “opinion”. The information included in the SoC has been public knowledge for about 3 years now, and could have been easily verified. This falls far short of what should be acceptable from a Prothonotary.

To what degree should court officials be able to decide what case are important

(12) Admittedly there is a level of discretion for the Prothonotary or Judgeinvolved. There has to be some leeway to decide what cases are important.

(13) That being said, the discretion was improperly used. From the Vancouversex workers case the Defendant referred to earlier.

[1] This appeal is concerned with the law of public interest standing in constitutional cases. The law of standing answers the question of who is entitled to bring a case to court for a decision. Of course it would be intolerable if everyone had standing to sue for everything, no matter how limited a personal stake they had in the matter. Limitations on standing are necessary in order to ensure that courts do not become hopelessly overburdened with marginal or redundant cases, to screen out the mere “busybody” litigant, to ensure that courts have the benefit of contending points of view of those most directly affected and to ensure that courts play their proper role within our democratic system of government: Finlay v. Canada (Minister of Finance), 1986 CanLII 6 (SCC), [1986] 2 S.C.R. 607, at p. 631.The traditional approach was to limit standing to persons whose private rights were at stake or who were specially affected by the issue. In public law cases, however, Canadian courts have relaxed these limitations on standing and have taken a flexible, discretionary approach to public interest standing, guided by the purposes which underlie the traditional limitations.

[2] In exercising their discretion with respect to standing, the courts weigh three factors in light of these underlying purposes and of the particular circumstances. The courts consider whether the case raises a serious justiciable issue, whether the party bringing the action has a real stake or a genuine interest in its outcome and whether, having regard to a number of factors, the proposed suit is a reasonable and effective means to bring the case to court: Canadian Council of Churches v. Canada (Minister of Employment and Immigration), 1992 CanLII 116 (SCC), [1992] 1 S.C.R. 236, at p. 253. The courts exercise this discretion to grant or refuse standing in a “liberal and generous manner” (p. 253).

(14) First, this case is not about some minor or trivial thing. Rather, it is about trying to close the Canadian border to illegals trying to enter Canada. The Government of Canada “should” be taking this seriously. In fact, providing a secure border is arguably the most important function a government should serve.

(15) It is asinine to suggest that a citizen does not have a legitimate interest in having secure borders, and asinine that society as a whole is not impacted by mass illegal entries. Protecting its borders and sovereignty is arguably the most important function a government has. Without borders to mark and enforce its territory, the nation dies.

(16) It is not enough to simply have signs saying “Welcome to Canada” or some such thing. Borders must be enforced by people, and they must have laws — laws with teeth — enforcing them.

(17) Second, on a personal level, it does impact the Plaintiff. She has to pay more in taxes, it cheapens her citizenship if anyone can simply enter Canada if they go AROUND the border crossings, and social service access is limited as more resources are used on illegals who have no right to be in the country. On a public level, the same issues apply. Tax dollars are spent when they shouldn’t be.

(18) Third, as for being a reasonable means of bringing the court hearing the case, what’s the alternative? If the Government won’t act in ways that are most conducive to the safety and well being of its people, then what options are there other than the court?

(19) Although there is clearly discretion in whether or not to grant standing to hear such cases, it was inappropriately used here, especially when the Federal Court has the jurisdiction to hear it. (This is not a trivial or minor case). See the Federal Courts Act

Jurisdiction of Federal Court
Marginal note:
Relief against the Crown 17 (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.

Extraprovincial jurisdiction
25 The Federal Court has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

What role should Prothonotaries have in striking out documents?

(20) The Defendant makes a straw-man argument alleging I claim that Prothonotaries have no jurisdiction to hear motions to strike. That is weasly, and a misrepresentation.

(21) What was actually said (and cited by many cases) is that: (a) Amendments should be allowed prior to striking; (b) striking should be reserved to only when pleading is bad beyond argument; (c) Claims should not be struck out just because they are novel; (d) Prothonotaries should not strike on matters that are not fully settled before the courts. From the COMER case (Commission on Monetary and Economic Reform), submitted with motion record.

[30] The Plaintiffs remind the Court of the general principles to be applied on a motion to strike. The facts pleaded by the Plaintiffs must be taken as proven: Canada (Attorney General) v Inuit Tapirasat of Canada, 1980 CanLII 21 (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle Inc., above; Hunt, above; Dumont v Canada (Attorney General), 1990 CanLII 131 (SCC), [1990] 1 SCR 279 [Dumont]; Trendsetter Developments Ltd v Ottawa Financial Corp. (1989), 32 OAC 327 (CA) [Trendsetter]; Nash v Ontario (1995), 1995 CanLII 2934 (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Canada v Arsenault, 2009 FCA 242 (CanLII) [Arsenault]. A claim should be struck “only in plain and obvious cases where the pleading is bad beyond argument” (Nelles, above, at 627), or where it is “‘plain and obvious’ or ‘beyond doubt’” that the claim will not succeed (Dumont, above, at 280; Trendsetter, above). It is inappropriate to strike a claim simply because it raises an “arguable, difficult or important point of law” (Hunt, above, at 990-91), or because it is a novel claim: Nash, above; Hanson v Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 OR (3d) 142 (CA); AdamsSmith v Christian Horizons (1997), 14 CPC (4th) 78 (Ont Gen Div); Miller (Litigation Guardian of) v Wiwchairyk (1997), 1997 CanLII 12256 (ON SC), 34 OR (3d) 640 (Ont Gen Div). Indeed, in the law of torts in particular, this may make it critical that the claim proceed so that the law can evolve in response to modern needs (Hunt, above, at 991-92). Matters not fully settled by the jurisprudence should not be decided on a motion to strike: R.D. Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 1991 CanLII 2731 (ON CA), 5 OR (3d) 778 (CA). The Plaintiffs say that, in order to succeed, the Defendants must produce a “decided case directly on point from the same jurisdiction demonstrating that the very same issue has been squarely dealt with and rejected”: Dalex Co v Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 OR (3d) 463 (Gen Div). Furthermore, the Court should be generous with respect to the drafting of the pleadings, permitting amendments before striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA); Toronto-Dominion Bank v Deloite Hoskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 OR (3d) 417 (Gen Div). Finally, the Claim has to be taken as pleaded by the Plaintiffs, not as reconfigured by the Defendants: Arsenault, above.

[31] The Plaintiffs say that the Prothonotary correctly stated the test on a motion to strike, but wholly misapplied it by determining substantive matters that should have been left for the trial judge, striking the Claim despite acknowledging that it was a “novel” and “complex” one, and making an erroneous ruling on the application of the Charter.

(22) As possible amendments, if certain statements were vague, or needed rewriting, that would certainly be possible to do. The option should have been given previously.

(23) With all of these principles in mind, striking with leave to amend (rewrite, clarify or otherwise fix) the Statement of Claim would have been the proper course rather than striking without leave. Here are a few proposed amendments if needed

  • Rewriting, redrafting the Statement of Claim, with more precise detail as seen fit.
  • Rewriting, redrafting the SoC, to make the legal arguments more clear
  • Modifying remedies sought, and just focusing on the law itself, not the fake refugees already here.

(24) If specific facts alleged should have clearer or more specific, that was — and still is — something that the Court can direct. Throwing the case out completely should not have been the first reaction.

Should the government be allowed to submit conflicting, or incoherent pleadings?

(25) The Defendant/Respondent has not disclosed that they have been fighting a case with a similar issue in Toronto since 2017. 3 “refugee claimants” are appealing the denial of their entry into Canada from the “warzone” that is the United States.

MOHAMMAD MAJD MAHER HOMSI ET AL v. MCI ET ALL
Court File: #IMM-775-17

NEDIRA JEMAL MUSTEFAv. MIRC ET AL
Court File: #IMM-2229-17

THE CANADIAN COUNCIL FOR RFUGEES ET AL v. MIRC ET AL
Court File: #IMM-2977-17

(26) The mental gymnastics are stunning. The Canadian Government tells the TORONTO Court that the Safe 3rd Country Agreement is necessary to protect Canadian borders from abuse. That same Government tells the VANCOUVER Court that an obvious loophole should not be closed, since the challenger is not a refugee claimant.

(27) That’s right. In Toronto, the Federal Government is telling the Court (and just had a 5 day hearing) that the Safe 3rd Country Agreement is vital. But in Vancouver, the Feds try to strike out a Claim attempting to close the loophole, which allows people to enter, just as long as they go around the actual border ports.

(28) In Toronto, border security is a critically important issue. In Vancouver, the case to secure the border from mass illegal entry is considered “busybody” work.

(29) Although the two cases are separate, and have separate parties, there is a palpable level of cognitive dissonance required in order for the Federal Government to argue both positions. As such, it should be considered arguing in bad faith, or being deliberately obfuscating.

Motion to strike
 221 (1) On motion, the Court may, at any time, order that a pleading, or anything contained therein, be struck out, with or without leave to amend, on the ground that it:
(a) discloses no reasonable cause of action or defence, as the case may be
(b) is immaterial or redundant
(c) is scandalous, frivolous or vexatious
(d) may prejudice or delay the fair trial of the action,
(e) constitutes a departure from a previous pleading, or
(f) is otherwise an abuse of the process of the Court
,

(30) Considering that the Toronto cases were started in 2017 — before this one — the defense in this case (the motion to strike) should actually not have been allowed to proceed. If not for contradictory pleadings, then for arguing in bad faith. 221(1)(e)

(31) In addition to the mental gymnastics of the 2 cases, the original motion to strike (filed by Aman Owais) was an abuse of the process of the court 221(1)(f)

(32) On top of that, take a look at the agreement itself. In the “understanding” portion of the Agreement, the following is written out.

EMPHASIZING that the United States and Canada offer generous systems of refugee protection, recalling both countries’ traditions of assistance to refugees and displaced persons abroad, consistent with the principles of international solidarity that underpin the international refugee protection system, and committed to the notion that cooperation and burden-sharing with respect to refugee status claimants can be enhanced;

DESIRING to uphold asylum as an indispensable instrument of the international protection of refugees, and resolved to strengthen the integrity of that institution and the public support on which it depends;

(33) In the original Motion to Strike, previous counsel Aman Owais argued that there was no loophole in the Safe 3rd Country Agreement, and that it was INTENDED to apply only to official border points (not the vast areas around them). This is utter nonsense and the Court should reject such arguments.

(34) The Agreement openly states that both Canada and the United States offer generous systems of refugee protection. It is therefore incoherent babble that people should be able to “asylum shop” simply by-passing official ports. This would reward people for breaking the law. The Government’s absurd claims like this are an abuse of the Court process in violation of Rule 221(1)(f), and the Motion should have been denied for that reason alone.

Does Canada owe an obligation (beyond S3CA) to protect its borders?

(35) Section 39, 40 of Immigration & Refugee Protection Act

39. A foreign national is inadmissible for financial reasons if they are or will be unable or unwilling to support themself or any other person who is dependent on them, and have not satisfied an officer that adequate arrangements for care and support, other than those that involve social assistance, have been made

40(1) A permanent resident or a foreign national is inadmissible for misrepresentation (a) for directly or indirectly misrepresentations or withholding material facts relating to a relevant matter that induces or could induce an error in the administration of this act.

(36) Section 39 and 40 of the Act are not for the protection of foreigners coming into Canada. Rather, they are to protect Canadians from people who are unwilling to support themselves, or who lie in order to get into Canada.

(37) The United Nations Office of Drugs and Crime (UNODC) in their 2011 publication “Smuggling of Migrants”

(38) A Global Review and Annotated Bibliography of Recent Publications”, noted the connection between illegal entry (which they call “irregular migration”) and the smuggling of people.

2.1 Smuggling of migrants and the concepts of irregular migration and trafficking in persons 2.1.1 Irregular migration
.
The relationship between irregular migration and smuggling of migrants has been discussed in the literature, with most authors acknowledging the crucial role of smuggling of migrants in facilitating irregular migration. The legal definition of smuggling of migrants finds wide acceptance among the academiccommunity, which usually refers to articles 3 and 6 of the Smuggling of migrants Protocol.

Contrary to the concept of smuggling, the notion of irregular migration does not have a universally accepted definition; however, most academics and experts refer to the definition provided by IOM, which highlights that the most common forms of irregular migration are illegal entry, overstaying and unauthorized work. In looking at the relationship between the two concepts, Friedrich Heckmann stresses that smuggling of migrants plays a crucial role in facilitating irregular migration, as smugglers may provide a wide range of services, from physical transportation and illegal crossing of a border to the procurement of false documents

(39) By refusing to properly protect and enforce the Canada/U.S. border, is Canada not taking the risk of aiding and abetting in the possible human smuggling across international borders?

(40) Objective 10 of the UN Global Migration Compact (which this government signed) requires Canada to act in ways to prevent smuggling and trafficking ofpersons

OBJECTIVE 10: Prevent, combat and eradicate trafficking in persons in the context of international migration
.
To realize this commitment, we will draw from the following actions:
.
a) Promote, ratification, accession and implementation of the Protocol to Prevent, Suppress and Punish Trafficking in Persons Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime (UNTOC)
.
b) Promote the implementation of the Global Plan of Action to Combat Trafficking in Persons and take into consideration relevant recommendations of the UNODC Toolkit to Combat Trafficking in Persons and other relevant UNODC documents when developing and implementing national and regional policies and measures relating to trafficking in persons

(41) Also, read article 11 of the UN Protocol to Prevent, Supress and Punish Trafficking In Persons, particularly woman and children, Supplementing the United Nations Convention Against Transnational Organized Crime. Canada ratified it in 2003, and is still a party to it.

(42) To state the obvious, how exactly does allowing fake refugees to come in BETWEEN official border ports?

(43) These are the 5 questions being asked in this reply

  • Should “due diligence” be required before making rulings?
  • To what degree should court officials be able to decide what cases are important?
  • What role should Prothonotaries have in striking out documents?
  • Should the government be allowed to submit conflicting, or incoherent pleadings?
  • Does Canada owe an obligation (beyond S3CA) to protect its borders?

(44) If the Court thinks it proper, I am willing to make necessary changes to fix whatever problems may exist in the original Statement of Claim. Here are a few ideas to consider:
(a) Rewriting, redrafting the Statement of Claim, with more precise detail as seen fit.
(b) Rewriting, redrafting the Statement of Claim, to make the legal arguments more clear
(c) Modifying remedies sought, and just focusing on the law itself, not the fake refugees
already here.

4. Authorities Cited

[1] Canada/US Safe Third Country Agreement
[2] UN Protocol to Prevent, Supress and Punish Trafficking In Persons, particularly woman and children, Supplementing the United Nations Convention Against Transnational Organized Crime
[3] Federal Courts Act
[4] UN Global Migration Compact
[5] Immigration and Refugee Protection Act
[6] UN Office Of Drugs and Crime (UN Site down)
https://www.unodc.org/documents/human-trafficking/Migrant
Smuggling/Smuggling_of_Migrants_A_Global_Review.pdf

5. Order Sought

The Plaintiff, Moving Party requests:
(a) The decision of Prothonotary Milczynski be overturned and
 The Claim be allowed to proceed, or
 Necessary amendments be allowed to be made
(b) Costs for the appeal (revoking the earlier waiver)

Arguments To Appeal Dismissal in S3CA Challenge (Unedited Version)

1. Quotes From Prothonotary’s Dismissal

2. Previous Links

CLICK HERE, for abuse of Safe Third Country Agreement.
CLICK HERE, for Prothonotary strikes out Statement of Claim.
CLICK HERE, for Uppity Peasants on the moral arguments.

NOTE: This is an unedited version of the written submission.
There is further editing and changes being made.

PART I. ISSUES

(1) Did Prothonotary Milczynski make overriding palpable error saying the Plaintiff’s claim was based on personal opinions, without material facts?

(2) Did Prothonotary Milczynski make an error of law in finding there is no public or private standing in the matter?

(3) Did Prothonotary Milczynski make an error of law by not taking facts alleged as proven, at least in the preliminary stages?

(4) Did Prothonotary Milczynski make an error of law by overreaching, and striking out a Statement of Claim in a matter that is complex and involves in depth analysis of law? Prothonotaries are not Judges or Justices.

(5) Did Prothonotary Milczynski make an error of law by not allowing for amendments?

(6) Did Prothonotary Milczynski make an error of law by not considering arguments of: unjust enrichment, unconscionability, negligence, or constitutional issues prior to striking?

(7) Did Prothonotary Milczynski make an error of law by allowing procedural rules to unjustly hinder a self represented litigant?

Standard For Review

(8) Housen v. Nikolaisen (2002) is the accepted standard for review. It outlines the standard for both factual errors, errors of law, and mixed law and fact errors. Hospira Healthcare Corp v. Kennedy Institute of Rheumatology (2017) clarified that Prothonotary orders being reviewed should subjected to the same standard, as they are basically the same thing.

(9) The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. …. The standard of review on pure questions of law is one of correctness, and an appellate court is thus free to replace the opinion of the trial judge with its own. Appellate courts require a broad scope of review with respect to matters of law because their primary role is to delineate and refine legal rules and ensure their universal application…. Questions of mixed fact and law involve the application of a legal standard to a set of facts.

PART II. FACTS

(10) In December 2002, Canada and the United States signed the “Safe Third Country Agreement” (the S3CA). This was in effect an agreement to prevent “asylum shopping” by forcing alleging to be refugees to apply for asylum in the first country they arrive in.

(11) In December 2004, the Safe Third Country Agreement (S3CA) legally took effect between Canada and the United States. This is not disputed by the other side.

(12) However, due to a “loophole” in the agreement, the rules apparently do not apply if a “refugee” simply bypasses official border ports of entry. In other words, enter Canada from the U.S. at any place other than an official port, then different rules apply. The result has been fake refugees entering from the U.S. and attempting to claim asylum.

(13) Instead of turning people away attempting to enter Canada from the United States, this loophole has made it easier for people to enter the country and submit asylum applications here. This completely defeats the purpose of having the agreement in the first place.

(14) The United States considers many thousands of asylum applications every year (see Exhibit A). It is because of this, and because of how legitimate asylees are treated, Canada as made this Safe Third Country Agreement in the first place.

(15) The claim that the Plaintiff’s assertions are just personal opinions is false. The ruling by Prothonotary Milczynski of that is complete nonsense. Here are some examples.

(16) The CBC, Canadian Broadcasting Corporation, has reported (see Exhibit B) that at least 50,000 people have entered Canada in just the last 2 years, coming from all countries.
Close to 50,000 have come into Canada in just two years at Roxham Road, stepping across the border at the unauthorized crossing.

But the majority of those who come here to Plattsburgh, N.Y., by bus, train or plane have spent little time in the U.S., arriving on tourist visas with the intent of treading the footpath to Canada.

When CBC News visited the crossing recently, in one day we met families and single travellers from Pakistan, Turkey, Yemen, Lebanon, Nigeria, Sri Lanka, Eritrea, as well as a Palestinian family from the occupied territories. Some arrived with what appeared to be fresh baggage tags from overseas flights into New York. Others had made their way north from Mexico, South and Central America.

They often prearrange taxis in Plattsburgh for the half-hour ride to the border. Since 2017, the route has become so normalized that taxi companies are branding themselves as border shuttles. A sign on one taxi van brazenly reads “Refugee Border.” Another reads “Roxham Border – LaColle Border” and advertises a group rate, with each ride costing between $60 and $80 US, a lucrative and steady business.

(17) But perhaps CBC is just faking the article. Perhaps all of this really the Plaintiff’s opinion (sarcasm). But moving on, the United Nations has published freely available articles on Roxham Road in Quebec. One such article (see Exhibit C) reads that at least 20,000 people have entered Canada illegally just in the Summer of 2017:

The 48-year old man, who used to work for Oxfam Quebec in Haiti, is one of the estimated five thousand Haitians who, in the hot summer days of 2017, walked into Canada via Roxham Road at the U.S.-Canada border. Together with these Haitians, some 20,000 people crossed into Canada via Roxham Road that summer, making it the main entry point into Canada for asylum seekers crossing the border irregularly.

(18) The United Nations, in this article, estimates that at least 20,000 people crossed into Canada illegally in just the Summer of 2017 at Roxham Road in Quebec. This is the United Nations’ own estimate. Not my imagination or opinion, as Prothonotary Milczynski has stated. Moving on, the Toronto Star has also written about the problem (Exhibit D) and writes that people are entering from Roxham Road every day in Canada.

Seven days a week, 24 hours a day, migrants who came to the U.S. from across the globe — Syria, Congo, Haiti, elsewhere — arrive here where Roxham Rd. dead-ends so they can walk into Canada, hoping its policies will give them the security they believe the political climate in the United States does not.

“In Trump’s country, they want to put us back to our country,” said Lena Gunja, a 10-year-old from Congo, who until this week had been living in Portland, Maine. She was travelling with her mother, father and younger sister. “So we don’t want that to happen to us, so we want a good life for us. My mother, she wants a good life for us.”

(19) The Toronto Star not only details the illegals (fake refugees) crossing into Canada from the US, but documents a family who was coming to Canada simply because they feared deportation because they were living in the U.S. illegally.

(20) Next, Global News covered Toronto Mayor John Tory on the topic of border jumpers, (see Exhibit E). He has said that homeless shelter beds are being filled up with illegals, and it has cost at least $64.5 million:

“But that goal is simply not achievable if the other governments, especially the federal government, don’t step up and take much greater responsibility to help us in an area of their jurisdiction. The status quo is simply not acceptable.”

City officials say the number of refugee claimants in Toronto’s shelter system has increased from 459 (11.2 per cent of the total system) in 2016 to 2,351 (37.6 per cent of the total system) in April 2018.
Tory said that if the level of refugees arriving in Toronto continues to rise, the city projects it will incur $64.5 million in direct costs related to providing shelter and housing.

(21) CTV news has also written about the cost of these fake refugees. Here (Exhibit F) is one of their submissions:

OTTAWA — The federal government has spent over $270 million on irregular border crossers over the last year and a half, according to government figures submitted to the parliamentary budget office.
The figures were requested by parliamentary budget officer Jean-Denis Frechette in early July and were recently released to members of the immigration committee.

All four agencies involved in dealing with irregular migration submitted amounts they have spent every month since early 2017 when the influx of asylum seekers began to ramp up. The total adds up to more than $270 million up to the end of June.

(22) Both the Conservative Party of Canada and the People’s Party of Canada have made pledges to close the loophole in the Safe Third Country Agreement (Exhibits G and H). This is to prevent more illegal crossings. But perhaps it is their opinions as well that this is happening.

(23) Prothonotary Milczynski’s ruled that the Plaintiff is stating personal opinions and personal beliefs. For this conclusion to be true, all of the following entities would have to be lying:
(a) The Canadian Broadcasting Corporation (CBC)
(b) Global News
(c) CTV News
(d) Toronto Star
(e) City of Toronto
(f) Toronto Mayor John Tory
(g) Conservative Party of Canada, and its members
(h) People’s Party of Canada, and its members

(24) Of course, this is only a small sample of the media, print, photographic and video evidence available about the illegal border crossings going on, particularly at Roxham Road, QC. Even the simplest of online searches would have found a wealth of information corroborating what the Plaintiff alleges.

(25) Also, part of Prothonotary Milczynski’s ruling is confusing. She states (accurately) that I have concerns about illegal immigration and fake refugees gaming the system. That part is true. But then she goes on to state that these are bare assertions. Does she think the Plaintiff is making up the entire thing?

PART III. LAWS ON THE SUBJECT

Standard For Review

(26) Housen v. Nikolaisen (2002) is the accepted standard for review. It outlines the standard for both factual errors, errors of law, and mixed law and fact errors. Hospira Healthcare Corp v. Kennedy Institute of Rheumatology (2017) clarified that Prothonotary orders being reviewed should subjected to the same standard, as they are basically the same thing.

Housen v. Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33 (CanLII)

https://www.canlii.org/en/ca/scc/doc/2002/2002scc33/2002scc33.html
(27) The standard of review for findings of fact is such that they cannot be reversed unless the trial judge has made a “palpable and overriding error”. A palpable error is one that is plainly seen. …. The standard of review on pure questions of law is one of correctness, and an appellate court is thus free to replace the opinion of the trial judge with its own. Appellate courts require a broad scope of review with respect to matters of law because their primary role is to delineate and refine legal rules and ensure their universal application…. Questions of mixed fact and law involve the application of a legal standard to a set of facts.

(28) Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, [2017] 1 FCR 331, 2016 FCA 215 (CanLII)

[66] In Housen, the Supreme Court enunciated the standard of review applicable to decisions of trial judges. More particularly, it concluded that with respect to factual conclusions reached by a trial judge, the applicable standard was that of palpable and overriding error. It also stated that with respect to questions of law and questions of mixed fact and law, where there was an extricable legal principle at issue, the applicable standard was that of correctness (paragraphs 19 to 37 of Housen).

[69] I am therefore of the view that there is no reason why we should not apply to discretionary orders of prothonotaries the standard applicable to similar orders by motions judges. I am supported in this view by our decision in Imperial Manufacturing, where we applied the Housen standard in reviewing the discretionary decision of a motions judge, namely her determination of a motion for particulars regarding certain allegations made in the Plaintiff’s statement of claim.

(29) In this case, Prothnotary Milczynski made both errors of fact, and errors of law.

(30) First, the errors of fact. The biggest one is the stating that the Plaintiff is making bald assertions, is being argumentative, and is stating personal opinions. This is completely wrong.

(31) People are coming into Canada illegally, that has been thoroughly documented. The fact that it happens, and estimates about the scale and costs are all public knowledge. Yet Prothonotary shrugs this off as “opinion”.

(32) The Statement of Claim (as I understand it) is not supposed to include evidence. That is to come later. Moreover, when responding to the motion to strike (via Rule 221) evidence is not supposed to be submitted, so that was not an option. How is a Plaintiff supposed to prove these facts when the Statement is struck out prior to it being allowed in? It was offered to do, if the Claim were allowed to be amended, but that didn’t happen.

(33) Prothnotary Milczynski’s ruling that facts were just “personal opinions” was a palpable error. It was an overriding one, causing the case to be thrown out prematurely.

Personal Standing

(34) The Government of Canada cited (Downtown Eastside Sex Workers United v. Attorney General of Canada, 2010), arguing that a personal, private stake in the matter must be shown. Okay.

(35) From a purely financial point of view, the Plaintiff does not want to see her tax dollars being spent on people who have no right to be in the country in the first place. This includes people circumventing the law by going around official border crossings. While this seems superficial and cold, it is an improper use of taxpayer money. It was shown in earlier exhibits that social services “are” being accessed.

(36) Moving beyond that, letting people into the country who are unscreened is a danger to the Plaintiff’s well being. True, not everyone is violent, however the Plaintiff has an expectation that the Government will take reasonable steps to ensure the identities and security risks of people entering the country. Simply entering the country from the “warzone” of the United States claiming to be a refugee does not ensure her safety. Moreover, it is unclear what, if any, medical screening these people have undergone prior to coming to Canada. Again, they just show up and claim to be fleeing persecution.

(37) Also, allowing fake refugees to enter from the United States cheapens the Plaintiff’s citizenship. Being Canadian is supposed to come with privileges and rights that are unique to Canadians. Simply allowing anyone into Canada from the U.S. who “identifies” as a refugee undermines the process, and weakens what it means to be Canadian.

(38) Previous Counsel, Aman Owais, made the extremely false and disingenuous argument that because the Plaintiff is not a refugee she has no right to intervene, as her rights are not at stake. This was an intentional straw-man argument. It was never about getting the Plaintiff into Canada as a refugee, but about protecting her (and Canada as a whole) from abuse of the refugee process.

(39) Regarding a public standing (Downtown Eastside Sex Workers United v. Attorney General of Canada, 2010), has issued a 3 point test to determine standing:
(a) the existence of a serious justiciable issue;
(b) whether the Plaintiff has a real or genuine interest in the matter;
(c) whether the proceeding is an effective means of bringing it to the court

(40) First point, yes there is a serious, justiciable issue. Maintaining an actual border with the power to exclude people is important. Prothonotary Milczynski has stated that it is not a sufficient issue to bring to court. Wrong. As stated in the earlier submissions, we have borders for a reason, and it is to protect the citizens from outsiders. This is not xenophobic, but simple reality. How can the Government offer its citizens any level of safety and security if it cannot control who comes into the country? Only the most obtuse or contrarian person would argue that there is not serious issue about having borders that exclude people without a right to be in the country.

(41) Far from being the work of a “busybody”, asking the Court to enforce existing laws is vital to the well being of the nation. Indeed, being able to secure its perimeter is arguably the most important function a Government should have. Instead, it is fighting efforts to compel it to do so.

(42) Second point, yes, the Plaintiff has a genuine interest in the matter. She is concerned over the problem of illegal immigration into Canada, which is largely at — but not exclusive to — Roxham Road. She in concerned about the money being spent on this (both her and others), the security risk that large numbers of illegals pose, and the cheapening of the Canadian citizenship. It is nonsense to suggest that bringing this matter to the court — at her own time and expense — isn’t a real interest. Protecting your nation’s borders isn’t “busybody” work, it’s what any true patriot should see as important.

(43) Third point, is this an effective means of bringing it to the Court? Yes. What is being asked of the Court is to order the Government of Canada to enforce existing laws and to stop illegal immigration into this country. This case only covers ILLEGAL immigration, which as should be obvious, is illegal. Courts get asked to enforce laws, or order enforcement every day. The only difference here is the scale of the enforcement that is being asked of it. And if not the Court, then who exactly is to remedy a problem when the Government itself won’t act?

(44) Rules 17 and 25 of the Federal Courts Act give the Plaintiff the ability to file here. The Federal Court does have jurisdiction

17 (1) Except as otherwise provided in this Act or any other Act of Parliament, the Federal Court has concurrent original jurisdiction in all cases in which relief is claimed against the Crown.
Extraprovincial jurisdiction

25 The Federal Court has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

(45) Think about how ridiculous this matter is: the Government of Canada has to be taken to court to enforce its own laws regarding border security. The Court is being asked to force the Government to enforce its own laws. The Judiciary has long been recognized as a “check and balance” against the Legislative and Executive Branches of Government.

(46) Prothonotary Milczynski made an error of law when ruling that the Plaintiff had no standing, wither publicly or in private to bring the case. She seems to view it as an opinion that nations need borders.
Unjust Enrichment, Unconscionability

(47) The Plaintiff also raised the issue of unjust enrichment. If you accept the fact that fake refugees are coming into Canada and receiving social benefits (as was demonstrated in the “facts” section), then how is this not unjust enrichment? How is taking something that one is not entitled to anything but unjust? Courts have the power to prevent this sort of thing from happening, and typically they do.

(48) Beyond unjust enrichment, consider the doctrine on unconscionability. If the Safe Third Country Agreement is to be worded — as the Government suggested before — that putting this loophole was intentional, does that not violate good public policy? Should agreements that act against public interest not be amended or voided as appropriate. If that was the case (and it appears to be just another excuse) then the agreement was invalid to begin with.

(49) Prothonotary Milczynski made an error of law when not appropriately considering the argument of unjust enrichment, or unconscionability

(50) Prothonotary Milczynski also erred in law when striking out a matter that is not simple, or established law. It is well established that this is not appropriate

(51) In Hanson v. Bank of Nova Scotia, the Ontario Court of Appeals reversed an order to strike out a Statement of Claim, stating that:

In my opinion, none of the above conclusions should be made at this stage of the proceedings. The threshold for sustaining a pleading under rule 21.01(1)(b) is not a high one. Much of the argument before us was directed to the lack of a factual underpinning for the causes of action alleged, particularly as to the damages issue. This is a matter to be resolved on the evidence called at the trial: see Temilini v. Ontario Provincial Police (Commissioner) (1990), 1990 CanLII 7000 (ON CA), 73 O.R. (2d) 664, 38 O.A.C. 270 (C.A.). It is also accepted that the fact that a cause of action could be a novel one is not a bar to its proceeding to trial: see Hunt v. Carey Canada Inc., 1990 CanLII 90 (SCC), [1990] 2 S.C.R. 959, 74 D.L.R. (4th) 321. The categories of relationships giving rise to fiduciary duties are not closed nor are the categories of negligence in which a duty of care is owed: see Guerin v. R., 1984 CanLII 25 (SCC), [1984] 2 S.C.R. 335 at p. 383, 13 D.L.R. (4th) 321 at p. 341; International Corona Resources Ltd. v. LAC Minerals Ltd., 1989 CanLII 34 (SCC), [1989] 2 S.C.R. 574 at pp. 596-97, 61 D.L.R. (4th) 14 at p. 61, and 34 Halsbury’s Laws of England, 4th ed. (1980), para. 5 at p. 8

(52) Although this case was an Ontario one, the same principle can be applied to Federal cases as well. Even if there are deficiencies in the Statement of Claim, they can usually be cured by filing an “amended” Statement of Claim. That must always be considered when asked to strike out. This is settled by a great many cases.

(53) In the COMER case, it was argued, that:

[30] The Plaintiffs remind the Court of the general principles to be applied on a motion to strike. The facts pleaded by the Plaintiffs must be taken as proven: Canada (Attorney General) v Inuit Tapirasat of Canada, 1980 CanLII 21 (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle Inc., above; Hunt, above; Dumont v Canada (Attorney General), 1990 CanLII 131 (SCC), [1990] 1 SCR 279 [Dumont]; Trendsetter Developments Ltd v Ottawa Financial Corp. (1989), 32 OAC 327 (CA) [Trendsetter]; Nash v Ontario (1995), 1995 CanLII 2934 (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Canada v Arsenault, 2009 FCA 242 (CanLII) [Arsenault]. A claim should be struck “only in plain and obvious cases where the pleading is bad beyond argument” (Nelles, above, at 627), or where it is “‘plain and obvious’ or ‘beyond doubt’” that the claim will not succeed (Dumont, above, at 280; Trendsetter, above). It is inappropriate to strike a claim simply because it raises an “arguable, difficult or important point of law” (Hunt, above, at 990-91), or because it is a novel claim: Nash, above; Hanson v Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 OR (3d) 142 (CA); Adams-Smith v Christian Horizons (1997), 14 CPC (4th) 78 (Ont Gen Div); Miller (Litigation Guardian of) v Wiwchairyk (1997), 1997 CanLII 12256 (ON SC), 34 OR (3d) 640 (Ont Gen Div). Indeed, in the law of torts in particular, this may make it critical that the claim proceed so that the law can evolve in response to modern needs (Hunt, above, at 991-92). Matters not fully settled by the jurisprudence should not be decided on a motion to strike: R.D. Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 1991 CanLII 2731 (ON CA), 5 OR (3d) 778 (CA). The Plaintiffs say that, in order to succeed, the Defendants must produce a “decided case directly on point from the same jurisdiction demonstrating that the very same issue has been squarely dealt with and rejected”: Dalex Co v Schwartz Levitsky Feldman (1994), 1994 CanLII 7290 (ON SC), 19 OR (3d) 463 (Gen Div). Furthermore, the Court should be generous with respect to the drafting of the pleadings, permitting amendments before striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA); Toronto-Dominion Bank v Deloite Hoskins & Sells (1991), 1991 CanLII 7366 (ON SC), 5 OR (3d) 417 (Gen Div). Finally, the Claim has to be taken as pleaded by the Plaintiffs, not as reconfigured by the Defendants: Arsenault, above.

[31] The Plaintiffs say that the Prothonotary correctly stated the test on a motion to strike, but wholly misapplied it by determining substantive matters that should have been left for the trial judge, striking the Claim despite acknowledging that it was a “novel” and “complex” one, and making an erroneous ruling on the application of the Charter.

(56) This reasoning absolutely applies here.
(a) No previous ruling, on point, was ever argued by the Defense. They never attempted to claim that this has been settled.
(b) To reiterate, claims made by a Plaintiff must be taken as proven, at least initially.
(c) New cases do result in laws changing over time, and the Courts accept that principle.
(d) Claims cannot be struck simply because they are difficult to prove.
(e) Claims cannot be struck simply because they are novel.

(57) The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just. If there were errors or confusion in the original Statement of Claim, it would have been better corrected by allowing an Amended Statement of Claim. Prothonotary Milczynski erred in not at least allowing the option. Certainly whether the Federal Government can be ordered to enforce its own laws regarding border security is an issue worthy of the Court’s attention.

(58) Striking out a claim in such an important and complex matter should be above the ability of a Prothonotary, and it is.

Negligence

(59) Also worth noting is that failing to secure the border could be viewed as negligence by the Court. Negligence, broadly speaking, is a 3 part test:
(a) A duty of care is owed
(b) That duty of care is breached
(c) Harm results from breaching the duty of care

(60) I would argue that the Government does owe a duty of care to the Canadian public. Securing the Federal borders and excluding people not legally allowed to enter is the essence of that duty. By allowing illegals into the country, the Government is breaching that duty of care. Yes, harm is resulting. This comes from taxes being used to support illegals, reduced security of the people, and the general cheapening of the Canadian citizenship.

Peace, Order, Good Government (POGG, Section 91)

(61) The Plaintiff submits that allowing people to enter Canada illegally, and at taxpayer expense, violates the POGG Doctrine. Morally, the citizens of Canada have as much of a right to safety as does any genuine refugee, and that letting in large numbers of “undocumented migrants” puts their safety at risk. Also, if the intent is to provide safety for those fleeing persecution, making it easy for individuals who may be after them (gang members, abusive husbands, w/e) to follow them into our country is doing no one any favours. We can’t provide safety to people fleeing persecution if anyone can enter as well

(62) We have no business in taking in so many people when we already have a housing shortage on our hands. crowding our homeless citizens out of the shelters by filling them with border crossers is morally reprehensible, particularly in light of our harsh winter climate. to do so is to argue that any one “refugee” from the other side of the planet is more worthy of shelter than a given, homeless Canadian; and given the disproportionately high rates of indigenous men and women among the homeless population, this ought not to be a perception for the government to continue to reinforce

(63) Yes, there are some generalizations in the above paragraphs, but we have obligations: both to Canadians, and to legitimate refugees. Simply letting people bypass border controls is not a good way to govern a country.

Self Represented Litigants/Accused People

(64) Since the Supreme Court ruling of Pintea v. Johns, (which endorsed the statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council), it has been practice for courts to go the extra mile to ensure that procedurals rules are not used to unjustly hinder. The ruling also allows for Court officials to explain rules and options to self-represented persons.

(65) Opportunities to amend a claim, or make changes as the Court requires, are granted all the time to lawyers. A self-rep should be given no less consideration. If anything, Courts should be inclined to cut them a break.

(66) This is not an attempt to have the Court “make my case”. Rather, it is to ensure the issues originally raised (illegal immigration) actually have their day in Court. Since our Federal Government seems to have little interest in enforcing our borders, it’s time for another opinion.

Summary Of Errors

(67) Prothonotary Milczynski made overriding, palpable error in ruling the facts alleged by the Plaintiff were bare assertions, and personal opinions. No opportunity to introduce evidence had been available up to that point.

(68) Prothonotary Milczynski further made several errors of law including:
(a) wrongly applying the standard of public and private standing. It assumes that there is no public or private interest by the Plaintiff in stopping illegal immigration, and hence ruled on the entire case. An overreach.
(b) Striking out the Statement of Claim when facts alleged by the Plaintiff were supposed to be taken as proven, at least in preliminary stages. This is well settled case law.
(c) Striking out the Statement of Claim in a matter that is complex and complicated. That is a serious overreach for a Prothonotary. They are not judges, and not supposed to behave as such. Again, settled case law.
(d) Not allowing the Plaintiff an attempt to prove the facts alleged in the Statement of Claim, or allowing an amended Statement to be filed. Again, facts alleged are supposed to be taken as true in early stages.
(e) Not at least considering the claims of: unjust enrichment, unconscionability, negligence or any constitutional question. However, she ruled everything to be opinion anyway.
(f) Not giving any consideration to a self-represented litigant, consistent with the Pintea v. Johns principles.

PART IV: AUTHORITIES

[1] Committee for Monetary and Economic Reform v. Canada, 2014 FC 380 (CanLII)
[2] Hanson v. Bank of Nova Scotia, 1994 CanLII 573 (ON CA)
[3] Hospira Healthcare Corporation v. Kennedy Institute of Rheumatology, [2017] 1 FCR 331, 2016 FCA 215 (CanLII)
[4] Housen v. Nikolaisen, [2002] 2 SCR 235, 2002 SCC 33 (CanLII)
[5] Pintea v. Johns, [2017] 1 SCR 470, 2017 SCC 23 (CanLII)

Prothonotary Strikes Out Challenge To S3CA Loophole

1. Quotes From Prothonotary’s Dismissal

2. Some Comments

There is more to the ruling, but here are the main points:

(a) No private standing to bring matter
(b) No public standing to bring matter
(c) It’s largely personal opinion
(d) Court has no power to do anything.

Apparently citizens have no right to demand that governments actually enforce border laws. What then is the point of having them?

Mass legal immigration, which is currently over 1M/year at this point, is in many ways a much worse problem then the illegal kind. However, everyone “should” be against illegal entry.

S3CA: Response To Motion To Strike


TABLE OF CONTENTS

WRITTEN SUBMISSIONS

ISSUES

FACTS

APPLICABLE LAW
-Right to self-representation
-Federal Court jurisdiction
-Private & Public standing
-Charter Provisions Engaged

  • 91 (POGG)
  • 15 (Equality)
  • 35 (Indigenous Rights)
  • 38 (Amending process)

-Unjust enrichment
-Unconscionability
-High burden to strike out
-Amending as an option
-Defense misrepresentation

ORDER SOUGHT


1. Written Submissions

2. Issues


-Does the Plaintiff have the right to self represent in this case?
-Does the Federal Court have jurisdiction to hear the case?
-Is there private or public interest standing in this case?
-Are the following Constitutional provisions engaged: 91 (POGG), 15 (equality rights), 35 (Indigenous rights), 38 (amending the constitution)?
-Does allowing fake refugees into Canada violate the doctrine of unjust enrichment?
-Does allowing fake refugees into Canada violate the doctrine of unconscionability?
-Does this motion meet the “very” high burden to strike out?
-Is amending the Claim a better option?
-Does the Government lawyer misrepresent the facts?

3. Facts

  1. Canada the US signed the S3CA in 2002. It came into effect in 2004.

  2. Canada is recognized as a safe country, which provides protection to people seeking genuine asylum

  3. The United States is also recognized as a safe country, and offers protection to people seeking protection from persecution based on: race, religion , political beliefs, and identity

  4. Both Canada and the US receive hundreds of thousands of refugee applications annually.

  5. Although there is a loophole in the agreement (which omits crossings “between” official ports), it was never meant to be a path for illegal immigration, or fraudulent refugee claims.

  6. Crossings from the US into Canada mainly fall into 2 categories:
    (a) Those coming to the US on tourist visas, with the intent of using the US as a stopover country,
    (b) Those living in the US illegally, who have decided to “asylum shop”

  7. There are AT LEAST 40,000 illegals who have snuck into Canada, likely many more.

  8. The Plaintiff is a self-representing, Canadian citizen, concerned about the impacts of illegal immigration. She is interested both as a private citizen, a taxpayer, and as a Canadian.

  9. Preventing illegal immigration (and bogus refugee claims), is both a private interest, and a public interest.

  10. Self represented people have every right to have their cases heard in court.

  11. Illegal immigration (such as via this loophole) undermines the integrity of the immigration system, costs cities and provinces money they don’t have, and undermines the security of the country

  12. For example, the Mayor of Toronto, John Tory, has reported that illegals have taken up almost half of the available space in homeless shelters

  13. The Federal Government has had to reimburse the Provinces (mainly Quebec and Ontario), over $300 million so far due to costs these “refugee claimants” have racked up.

  14. The Federal Government has also been paying the homeowners near Roxham Road — using taxpayer money — for the damage caused to their properties.

  15. Recently, a group of illegal “refugee claimants” has announced plans to sue Quebec for subsidized daycare.

  16. The flood of fake refugees has caused a strain on the health care system, particularly in Ontario and Quebec.

  17. All of the above statements are not “mere assertions”. They are facts which can be proven in the course of the trial and via discovery.

  18. The Government makes at least 3 serious misrepresentations.

  19. First, the Government’s lawyer, Aman Owais, misrepresents the truth when claiming the loophole was “intentionally” written into the agreement. This is provably false, since even Trudeau has publicly spoken about the need to cut the illegal border crossings.

  20. Second, there is a strawman argument that this is about refugee protections. Wrong, it is about protecting the public from illegal immigration.

  21. Third, and furthermore, Aman Owais suggests that it would be better to have a refugee claimant make this claim. This is complete nonsense. A person using legal channels wouldn’t be impacted by this case. A person using illegal means to enter Canada would have no reason to pursue this, as it would be a big conflict of interest.

4. Applicable Law

22: Self representing litigants: From Pintea v. Johns, [2017] 1 SCR 470, 2017 SCC 23 (CanLII)

[3] As a result, the finding of contempt cannot stand.
[4] We would add that we endorse the Statement of Principles on Self-represented Litigants and Accused Persons (2006) (online) established by the Canadian Judicial Council.
https://www.cjc-ccm.gc.ca/cmslib/general/news_pub_other_PrinciplesStatement_2006_en.pdf
B. PROMOTING EQUAL JUSTICE
STATEMENT:
Judges, the courts and other participants in the justice system have a responsibility to promote access to the justice system for all persons on an equal basis, regardless of representation.
PRINCIPLES:
1. Judges and court administrators should do whatever is possible to provide a fair and impartial process and prevent an unfair disadvantage to self-represented persons.
2. Self-represented persons should not be denied relief on the basis of a minor or easily rectified deficiency in their case.
3. Where appropriate, a judge should consider engaging in such case management activities as are required to protect the rights and interests of self-represented persons. Such case management should begin as early in the court process as possible.
4. When one or both parties are proceeding without representation, non-prejudicial and engaged case and courtroom management may be needed to protect the litigants’ equal right to be heard. Depending on the circumstances and nature of the case, the presiding judge may:
(a) explain the process;
(b) inquire whether both parties understand the process and the procedure;
(c) make referrals to agencies able to assist the litigant in the preparation of the case;
(d) provide information about the law and evidentiary requirements;
(e) modify the traditional order of taking evidence; and
(f) question witnesses.

23: There is nothing in the Pintea v. Johns ruling that says self-represented people can “only” appear in certain courts or in certain types of cases

Federal Court has jurisdiction to hear the case

24: Consider that the test for determining if a matter is within the Federal Court’s jurisdiction is stipulated in ITO-International Terminal Operators LTD v Miida Electronics, 1986 CanLII 91 (SCC), [1986] 1 SCR 752 at 766 [ITO-International]:

1. There must be a statutory grant of jurisdiction by Parliament.
2. There must be an existing body of federal law which is essential to the disposition of the case and which nourishes the statutory grant of jurisdiction.
3. The law on which the case is based must be “a law of Canada” as the phrase is used in s. 101 of the Constitution Act.

Furthermore, the Federal Courts Act (under Rule 25) has original jurisdiction if no other court is designated as such.
Extraprovincial jurisdiction.

Rule 25: The Federal Court has original jurisdiction, between subject and subject as well as otherwise, in any case in which a claim for relief is made or a remedy is sought under or by virtue of the laws of Canada if no other court constituted, established or continued under any of the Constitution Acts, 1867 to 1982 has jurisdiction in respect of that claim or remedy.

25: Although designed for Judicial Review Applications, the Federal Court does have authority under Rule 18.1(5) of Federal Courts Act to correct errors in form or technical defects. The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just.

Defect in form or technical irregularity,
(5) If the sole ground for relief established on an application for judicial review is a defect in form or a technical irregularity, the Federal Court may
(a) refuse the relief if it finds that no substantial wrong or miscarriage of justice has occurred; and
(b) in the case of a defect in form or a technical irregularity in a decision or an order, make an order validating the decision or order, to have effect from any time and on any terms that it considers appropriate.

26: Immigration matters are within the jurisdiction of the Federal Court. And this case is essentially about illegal immigration and border security. Furthermore, if this case prevailed, it would certainly have an impact on how asylum claims were handled in the future.

27: The Canadian Border Services Agency enforces the border, and enforces approximately 90 different acts. So there is ample Federal law to be looked at here. They are given their authority under the Customs Act.

28: Furthermore, CBSA enforces such acts as

Access to Information Act [R.S.C. 1985, c. A-1]
Aeronautics Act [R.S.C. 1985, c. A-2]
Agriculture and Agri-Food Administrative Monetary Penalties Act [S.C. 1995, c. 40]
Appropriation Acts [R.S.C. 1985, c. Z-01 ]
Bankruptcy and Insolvency Act [R.S.C. 1985, c. B-3]
Canada Agricultural Products Act [R.S.C. 1985, c. 20 (4th Supp.)]
Canada Grain Act [R.S.C. 1985, c. G-10]
Canada Post Corporation Act [R.S.C. 1985, c. C-10]
Canada Shipping Act, 2001 [S.C. 2001, c. 26]
Canada Transportation Act [S.C. 1996, c. 10]
Canada-Chile Free Trade Agreement Implementation Act [S.C. 1997, c. 14]
Canada-Costa Rica Free Trade Agreement Implementation Act [S.C. 2001, c. 28]
Canada-Israel Free Trade Agreement Implementation Act [S.C. 1996, c. 33]
Canada-United States Free Trade Agreement Implementation Act [S.C. 1988, c. 65]
Canadian Environmental Protection Act, 1999 [S.C. 1999, c. 33]
Canadian Wheat Board Act [R.S.C. 1985, c. C-24]
Coasting Trade Act [S.C. 1992, c. 31]
Consumer Packaging and Labelling Act [R.S.C. 1985, c. C-38]
Criminal Code [R.S.C. 1985, c. C-46]
Cultural Property Export and Import Act [R.S.C. 1985, c. C-51]
Customs and Excise Offshore Application Act [R.S.C. 1985, c. C-53]
Customs Tariff [S.C. 1997, c. 36]
Department of Agriculture and Agri-Food Act [R.S.C. 1985, c. A-9]
Department of Citizenship and Immigration Act [S.C. 1994, c. 31]
Department of Industry Act [S.C. 1995, c. 1]
Energy Efficiency Act [S.C. 1992, c. 36]
Excise Act [R.S.C. 1985, c. E-14]
Excise Act, 2001 [S.C. 2002, c. 22]
Excise Tax Act [R.S.C. 1985, c. E-15]
Explosives Act [R.S.C. 1985, c. E-17]
Export Act [R.S.C. 1985, c. E-18]
Export and Import Permits Act [R.S.C. 1985, c. E-19]
Feeds Act [R.S.C. 1985, c. F-9]
Fertilizers Act [R.S.C. 1985, c. F-10]
Financial Administration Act [R.S.C. 1985, c. F-11]
Firearms Act [S.C. 1995, c. 39]
Fish Inspection Act [R.S.C. 1985, c. F-12]
Fisheries Act [R.S.C. 1985, c. F-14]
Food and Drugs Act [R.S.C. 1985, c. F-27]
Harbour Commissions Act [R.S.C. 1985, c. H-1]
Hazardous Products Act [R.S.C. 1985, c. H-3]
Health of Animals Act [S.C. 1990, c. 21]
Immigration and Refugee Protection Act [S.C. 2001, c. 27]
Importation of Intoxicating Liquors Act [R.S.C. 1985, c. I-3]
Industrial and Regional Development Act [R.S.C. 1985, c. I-8]
International Boundary Commission Act [R.S.C. 1985, c. I-16 ]
Meat Inspection Act [R.S.C. 1985, c. 25 (1st Supp.)]
Motor Vehicle Safety Act [S.C. 1993, c. 16]
National Defence Act [R.S.C. 1985, c. N-5]
National Energy Board Act [R.S.C. 1985, c. N-7]
Navigable Waters Protection Act [R.S.C. 1985, c. N-22]
Nuclear Safety and Control Act [S.C. 1997, c. 9]
Pest Control Products Act [S.C. 2002, c. 28]
Pilotage Act [R.S.C. 1985, c. P-14]
Plant Breeders’ Rights Act [S.C. 1990, c. 20]
Plant Protection Act [S.C. 1990, c. 22]
Precious Metals Marking Act [R.S.C. 1985, c. P-19]
Preclearance Act [S.C. 1999, c. 20]
Privacy Act [R.S.C. 1985, c. P-21]
Privileges and Immunities (North Atlantic Treaty Organisation) Act [R.S.C. 1985, c. P-24]
Proceeds of Crime (Money Laundering) and Terrorist Financing Act [S.C. 2000, c. 17]
Radiation Emitting Devices Act [R.S.C. 1985, c. R-1]
Radiocommunication Act [R.S.C. 1985, c. R-2]
Seeds Act [R.S.C. 1985, c. S-8]
Special Economic Measures Act [S.C. 1992, c. 17]
Special Import Measures Act [R.S.C. 1985, c. S-15]
Statistics Act [R.S.C. 1985, c. S-19]
Textile Labelling Act [R.S.C. 1985, c. T-10]
Trade-marks Act [R.S.C. 1985, c. T-13]
Transportation of Dangerous Goods Act, 1992 [S.C. 1992, c. 34]
Visiting Forces Act [R.S.C. 1985, c. V-2]
Wild Animal and Plant Protection and Regulation of International and Interprovincial Trade Act [S.C. 1992, c. 52]
Source: https://www.cbsa-asfc.gc.ca/agency-agence/actreg-loireg/legislation-eng.html

29: The border clearly is being protected in accordance with Federal laws, and Acts passed by Parliament. So loopholes which make it harder for them to do their job at least conflict with Federal laws.

30: It has also long been held that,

The Supreme Court of Canada has ruled that the Constitution does not belong to the federal or provincial governments, but to Canadian citizens (Nova Scotia (AG)), and that it is a tool for dispute resolution, of which one of the most important goals is to serve well those who make use of it: Reference Re Residential Tenancies Act, 1996 CanLII 259 (SCC), [1996] 1 SCR 186 at 210.

There private & public interest standing in this case

31: Three cases which are used to determine public interest standing are:

(a) Thorson v. Attorney General of Canada, (b) Nova Scotia Board of Censors v. McNeil, and (c) Minister of
Justice v. Borowski. The trilogy was summarized as follows in Canadian Council of
Churches v. Canada (Minister of Employment and Immigration):

It has been seen that when public interest standing is sought, consideration must be given to three aspects.
First, is there a serious issue raised as to the invalidity of legislation in question?
Second, has it been established that the plaintiff is directly affected by the legislation or if not does the plaintiff have a genuine interest in its validity?
Third, is there another reasonable and effective way to bring the issue before the court?

32: First: if this “interpretation” of the S3CA is as the Government claims, then effectively the Canada/US border disappears, except for a small number of official crossings. That is pretty serious. Illegal immigration cannot simply be shrugged off if it is not the government raising the issue.

33: Second: Yes, I am effected by illegal immigration. As a taxpayer, and as a citizen who wants secure borders. Clearly I have a genuine interest here. Why else go to court to do this? It is insulting and misrepresents reality to suggest that citizens are not concerned and interested in the external security of their nation.

34: Third, there doesn’t seem to be another reasonable or effective way to bring it to the Courts. It is the Government itself, with a majority mandate, which seems content to end-run the intent of the law.

35: Note: Public-interest standing is also available in non-constitutional cases, as the Court found
in Finlay v. Canada (Minister of Finance)

36: Plaintiff submits that there clearly is standing to bring forward these justiciable issues on the facts pleaded. This standing is personal, but it is also public interest-based and is in line with recent jurisprudence: Canada (Attorney General) v Downtown Eastside Sex Workers United Against Violence Society, 2012 SCC 45 (CanLII); Galati, above.

Following Constitutional provisions engaged:

  • 91(POGG),
  • 15 (equality rights),
  • 35 (Indigenous rights),
  • 38 (amending the constitution)

Peace, Order & Good Governance (Section 91)

37: Consider the case of R. v. Crown Zellerbach Canada Ltd., [1988] 1 SCR 401, 1988 CanLII 63 (SCC).

33. From this survey of the opinion expressed in this Court concerning the national concern doctrine of the federal peace, order and good government power I draw the following conclusions as to what now appears to be firmly established:

1. The national concern doctrine is separate and distinct from the national emergency doctrine of the peace, order and good government power, which is chiefly distinguishable by the fact that it provides a constitutional basis for what is necessarily legislation of a temporary nature;

2. The national concern doctrine applies to both new matters which did not exist at Confederation and to matters which, although originally matters of a local or private nature in a province, have since, in the absence of national emergency, become matters of national concern;

3. For a matter to qualify as a matter of national concern in either sense it must have a singleness, distinctiveness and indivisibility that clearly distinguishes it from matters of provincial concern and a scale of impact on provincial jurisdiction that is reconcilable with the fundamental distribution of legislative power under the Constitution;

38: In looking this through the Peace, Order and Good Government (POGG) doctrine, it is worth asking should we allow actions that our laws seem designed to prevent?

34(1)(b.1) of the Immigration and Refugee Protection Act prohibits: engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada.

39: Allowing fake refugees to slip in arounf official border ports in order to “jump the queue” seems hardly in keeping with the POGG principle, or Rule 34(1)(b.1). Again, it is submitted that poor wording, not intent is the cause of this loophole.

40: The Court must also consider the national security implications of protecting the border. This should be obvious, but a nation that cannot control its border ceases to be a nation.

41: Currently, illegal border jumpers (fleeing war zones in Minnesota and New York State), are able to illegally enter Canada. They are processed, then released into the public often within hours. There is no public interest in doing this.

42: Given the vast amount of unscreened and unvetted fake “refuges” entering, there is no way to keep the public safe. This is not consistent with POGG in any sense.

43: Again, the Government’s lawyer “claims” that this loophole was intentionally written into the S3CA. This is even while Justin Trudeau and other Government members profess their desire to cut illegal entries. Obviously, both statements can’t be true.

44: As cited above, there are literally dozens of Acts which members of the CBSA are charged with enforcing. Obviously, enforcing the border is a sign of POGG. Now, how does adding a loophole to bypass some of these Acts make any sense?

45: How does it now undermine our national security? Borders are meant to be the protected outer areas of a nation. No one, except the most disingenuous would argue that borders do not matter. However, the Government does an end run around that (violating POGG doctrine), by claiming the loophole in the S3CA was intentional.

46: Border security “doesn’t” matter, apparently, as long as you go around the official checkpoints.

Section 15; Equality Rights:

47: This seems like a strange one to bring up. However, the Government of Canada’s website on Charter cases brought up an interesting argument about equality under the law.

(a) Pre-existing disadvantage, stereotyping, prejudice, or vulnerability experienced by the individual or group at issue
Section 15 has a significant remedial component (Andrews, supra at 171). Therefore, one of the most compelling factors is the impact of the governmental action on individuals or groups who are vulnerable, the object of stereotypes, disadvantaged or members of “discrete and insular minorities” (Law, supra at paragraphs 63-68). A member of a group that historically has been more disadvantaged in Canadian society is less likely to have difficulty in demonstrating discrimination (Law, supra at paragraph 68). When considering intra-group distinctions within a larger disadvantaged group (for example, as between status and non-status Indians, as determined pursuant to the Indian Act), there is no requirement that the claimant group be the more disadvantaged; there is no “race to the bottom” (Lovelace, supra at paragraph 69). Where no such unique disadvantage is established, as distinct from the broader group which provides the basis for comparison, this factor does not play a significant role (Gosselin, supra; Martin; Laseur, supra at paragraph 88).

48: In this case, the disadvantaged people are those who immigrate legally into Canada, and go through proper channels.
True, Canada’s immigration system is slow, expensive, and very complex. But that is a debate for another day. Point is, hundreds of thousands of people follow proper due process every year.

49: They are the ones who suffer as “border jumpers” push ahead of them, and get preferential treatment, and access to benefits. Furthermore, they are the ones who suffer the public backlash as Canadian get fed up with mass, illegal immigration.

50: In short, legal applicants suffer because of the actions of criminals.

Section 35: Indigenous Rights

51: From the case: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, 2004 SCC 73 (CanLII), the issue of duty to consult to brought up.

26 Honourable negotiation implies a duty to consult with Aboriginal claimants and conclude an honourable agreement reflecting the claimants’ inherent rights. But proving rights may take time, sometimes a very long time. In the meantime, how are the interests under discussion to be treated? Underlying this question is the need to reconcile prior Aboriginal occupation of the land with the reality of Crown sovereignty. Is the Crown, under the aegis of its asserted sovereignty, entitled to use the resources at issue as it chooses, pending proof and resolution of the Aboriginal claim? Or must it adjust its conduct to reflect the as yet unresolved rights claimed by the Aboriginal claimants?

27 The answer, once again, lies in the honour of the Crown. The Crown, acting honourably, cannot cavalierly run roughshod over Aboriginal interests where claims affecting these interests are being seriously pursued in the process of treaty negotiation and proof. It must respect these potential, but yet unproven, interests.

52: The case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), [2004] 3 SCR 550, 2004 SCC 74 (CanLII), should also be considered, and for much the same principle.

25 As discussed in Haida, what the honour of the Crown requires varies with the circumstances. It may require the Crown to consult with and accommodate Aboriginal peoples prior to taking decisions: R. v. Sparrow, 1990 CanLII 104 (SCC), [1990] 1 S.C.R. 1075, at p. 1119; R. v. Nikal, 1996 CanLII 245 (SCC), [1996] 1 S.C.R. 1013; R. v. Gladstone, 1996 CanLII 160 (SCC), [1996] 2 S.C.R. 723; Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010, at para. 168. The obligation to consult does not arise only upon proof of an Aboriginal claim, in order to justify infringement. That understanding of consultation would deny the significance of the historical roots of the honour of the Crown, and deprive it of its role in the reconciliation process. Although determining the required extent of consultation and accommodation before a final settlement is challenging, it is essential to the process mandated by s. 35(1). The duty to consult arises when a Crown actor has knowledge, real or constructive, of the potential existence of Aboriginal rights or title and contemplates conduct that might adversely affect them. This in turn may lead to a duty to change government plans or policy to accommodate Aboriginal concerns. Responsiveness is a key requirement of both consultation and accommodation.

53: It is a serious question here: how much consultation (if any), was done before signing a document that — the Federal Government now claims — eliminates the security of the Canada/US border? Just because there isn’t a claim pending doesn’t mean there are not valid Indigenous interests to be considered

54: No consultation process took place — EVER — which would fulfill the obligations to negotiate in good faith with Indigenous groups. The Government claims that the S3CA was “designed” to allow for entrants from the United States to make refugee claims, as long as they bypass the official border ports.

It would be disingenuous for the Federal Government to claim that it wouldn’t be aware of any obligation to consult prior to “erasing” the US/Canada border.

55: The Government breached is S35 obligations if, by this defense, the S3CA was drawn up with the loophole “intentionally” left in.

Substantial Consent required (section 38)

56: If the Government truly believes that POGG, and other obligations can be circumvented by intentional poor wording, then we need to amend the constitution to change what POGG means.

57: This was decided regarding the issue of changing the Senate rules (Reference re Senate Reform, [2014] 1 SCR 704, 2014 SCC 32 (CanLII) (S38). The Court cited the amending procedure.

[34] The process set out in s. 38 is the general rule for amendments to the Constitution of Canada. It reflects the principle that substantial provincial consent must be obtained for constitutional change that engages provincial interests. Section 38 codifies what is colloquially referred to as the “7/50” procedure — amendments to the Constitution of Canada must be authorized by resolutions of the Senate, the House of Commons, and legislative assemblies of at least seven provinces whose population represents, in the aggregate, at least half of the current population of all the provinces. Additionally, it grants to the provinces the right to “opt out” of constitutional amendments that derogate from “the legislative powers, the proprietary rights or any other rights or privileges of the legislature or government of a province”.

58: If what the Government says is true, then the doctrine of Peace, Order and Good Government (POGG) has been distorted to such a degree that a Constitutional amendment should be required.

59: These constitutional arguments are not exhaustive, and will be expanded on more fully as the case progresses. The point here, is that the case at hand (the loophole in the Safe Third Country Agreement), engages the same Charter rights as what is cited here.

Doctrine of unjust enrichment

60: The Court must also consider how allowing illegal immigration and fake refugees to gain priority over legal immigrant violates the doctrine of unjust enrichment.

61: Citing from 3 cases:
Kerr v. Baranow, [2011] S.C.J.
Kerr v. Baranow, 2009 BCCA 111
Vanasse v. Seguin, 2009 ONCA 595

62: These cases set the standard for unjust enrichment. (a) the person received a benefit, (b) the claimant suffered a loss corresponding in some way to the benefit, and (c) there was no juristic reason for the benefit and the loss.

63: As stated in the facts, these so-called “refugees” have been accessing public services. This costs money, and takes away from actual citizens.

64: And forget the money factor for a moment. Isn’t Canadian residence or citizenship a thing of value itself? If we consider that being Canadian is something to be valued, then doesn’t obtaining it (or Permanent Residence, or Protected Status) under false pretenses count as illegally obtaining a benefit?

Doctrine of unconscionability

65: From the Immigration and Refugee Protection Act, trying to circumvent proper immigration channels should not be rewarded.

34(1)(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

66: If the loophole in S3CA was written in such a way as to circumvent very legitimate national security and immigration concerns, then how valid and enforceable is it?

67: Remember, Aman Owais, (the Government’s lawyer) has pleaded the intent of the agreement was “not” to apply the proper screening rules as long as self-identified “refugees” bypass official border ports. This is claimed to be intentional, not accidental.

68: Notwithstanding that no reasonable person could view it that way, and notwithstanding the Canadian Government has made announcements to cut down on these crossings, how valid are these provisions?

Does this motion meet the “very” high burden to strike out

69: Even if there are deficiencies in the Statement of Claim, they can usually be cured by filing an “amended” Statement of Claim. That must always be considered when asked to strike out. This is settled by a great many cases.

In terms of the general principles that ought to be applied on a motion to strike, the Plaintiffs assert that the facts pleaded by the Plaintiffs must be taken as proven: Canada (Attorney General) v Inuit Tapirasat of Canada, 1980 CanLII 21 (SCC), [1980] 2 SCR 735; Nelles v Ontario (1989), DLR (4th) 609 (SCC) [Nelles]; Operation Dismantle, above; Hunt v Carey Canada Inc 1990 CanLII 90 (SCC), [1990] 2 SCR 959 [Hunt]; Dumont v Canada (Attorney General), 1990 CanLII 131 (SCC), [1990] 1 SCR 279 [Dumont]; Nash v Ontario (1995), 1995 CanLII 2934 (ON CA), 27 OR (3d) 1 (Ont CA) [Nash]; Canada v Arsenault, 2009 FCA 242 (CanLII) [Arsenault].

The Plaintiffs echo the test referenced by the Defendants, asserting that a claim can be struck only in plain and obvious cases where the pleading is bad beyond argument: Nelles, above, at para 3. The Court has provided further guidance in Dumont, above, that an outcome should be “plain and obvious” or “beyond doubt” before striking can be invoked (at para 2). Striking cannot be justified by a claim that raises an “arguable, difficult or important point of law”: Hunt,

The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim.

70: This case DOES raise an important point of law, one the Defendant pretends doesn’t exist. Can the Court close a plain and obvious loophole in the S3CA?

71: Can a clearly frivilious, fraudulent, abusive and vexxing defense filed by the Crown be overcome?

72: Note: this does not amount to a rejection of the agreement as a whole. For the most part, it is a fine document.

Amending the Claim a better option

73: The Federal Court has the powers (under 47(1) and 53(1) and (2) of Federal Courts Rules), to ask with a wide degree of discretion and to make orders it views as just.

The novelty of the Amended Claim is not reason in and of itself to strike it: Nash, above, at para 11; Hanson v Bank of Nova Scotia (1994), 1994 CanLII 573 (ON CA), 19 OR (3d) 142 (CA); Adams-Smith v Christian Horizons (1997), 3 OR (3d) 640 (Ont Gen Div). Additionally, matters that are not fully settled by the jurisprudence should not be disposed of on a motion to strike: RD Belanger & Associates Ltd v Stadium Corp of Ontario Ltd (1991), 1991 CanLII 2731 (ON CA), 5 OR (3d) 778 (CA). In order for the Defendants to succeed, the Plaintiffs state that a case from the same jurisdiction that squarely deals with, and rejects, the very same issue must be presented: Dalex Co v Schwartz Levitsky Feldman (1994), 19 OR (3d) 215 (CA). The Court should be generous when interpreting the drafting of the pleadings, and allow for amendments prior to striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA).

74: The facts as laid out in the above section are not bare assertions. They can be proven in court, going through the discovery and document production phases. It is not at all plain and obvious that the Claim is baseless.

75: Any flaws in the Plaintiff’s Statement of Claim could be cured by amending.

Government lawyer misrepresents the facts

76: The Government claims, without any basis, that the S3CA was negotiated with the “loophole” deliberately written in. In essence, they are arguing that although the Canada/US border stretches for thousands of miles, only the few dozen “legal” entry ports should be considered. Anywhere else, people are free to walk across and claim asylum. If this were actually true, it would effectively erase the Canadian border.

77: Bald assertions, without supporting facts, are not sufficient to satisfy the rules of pleading. See Rule 174 and accompanying jurisprudence. This should also applies to motions to strike.

78: Bald assertions, without facts, are baseless. If any part of the claim is “plainly and obviously” without merit, it is the defense raised by the Government.

79: The claim that the S3CA was “intended” to allow illegal border crossings is fraudulent, and an attempt to mislead and deceive the court by Aman Owais. This is plain and obvious given that members of the Government, including Justin Trudeau himself, have publicly stated the need to stop illegal border crossings. The false defense violates Rule 221, as a frivilous, vexous, and abusive misuse of Court procedure.

80: This can and will be proven in a trial.

81: Also worth noting: according to Rule 221, “inconsistent pleadings” can be struck out. So if the Government ever tries to put another spin on this, it will automatically qualify for striking.

82: And to reiterate: the “remedy” suggested makes no sense. A person entering Canada legally would have no interest in the case, since it only covers illegal entry. A person entering Canada illegally would have no reason to pursue the case, as it would be a conflict of interest. This absurd solution wastes court resources.

83: The government also appears to distort the purpose of the case. It is about protecting the Canadian public from illegal immigration, not making things easier for people to cross the border.

84: To add insult, Aman Owais also implies that I have no business attempting this case since I am not a lawyer. Arrogance. Pintea v Johns (2017, SCC) enshrines protections for “all” self-representing litigants. It doesn’t limit it to certain types of cases, or certain Courts.

85: Will closing this loophole have an impact on current and future cases? Hopefully. Otherwise, what would be the point of going to Court?

4. Summary

86: Plaintiff has a right to self represent

87: Federal Court has jurisdiction

88: Plaintiff has both a private interest, and qualifies for public interest standing

89: Constitutional provisions engaged: 91(POGG), 15 (equality rights), 35 (Indigenous rights), 38 (amending the constitution)

90: Allowing fake refugees into Canada violates the doctrine of unjust enrichment & unconscionability

91: Motion doesn’t meet the “very” high burden to strike out

92: Amending the Claim a better option than striking without leave.

93: Note: This is not an attempt to get to court to make a final ruling on the case. Rather, it is to show that there is merit to the case

94: The Supreme Court of Canada has ruled that the Constitution does not belong to the federal or provincial governments, but to Canadian citizens (Nova Scotia (AG))

95: The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson

96: The Court should be generous when interpreting the drafting of the pleadings, and allow for amendments prior to striking: Grant v Cormier – Grant et al (2001), 2001 CanLII 3041 (ON CA), 56 OR (3d) 215 (CA).

5. Order Sought

(a) Dismiss the motion; or
(b) Allow the Plaintiff an opportunity to amend the statement of claim.

Defense Motion To Stike: Safe 3rd Country Agreement Loophole

On Thursday, the Federal Government filed a motion to strike out (throw out) challenge to closing the loophole in the Canada/US Safe 3rd Country Agreement.

Here are the main points:

(1) I’m not a lawyer, so it is a waste of the court’s time to hear from someone who isn’t professionally trained.

That is irrelevant. Self-reps are allowed to do their own work, and the Court must give them fair consideration as per the Supreme Court ruling (Pintea v. Johns, 2017)

(2) I have no standing, either privately or publicly, to challenge this matter.

Sure, protecting the integrity of your borders and immigration systems are not at all a public or private interest.

(3) I have no genuine interest in the matter.

Obviously not, I just filed the case for fun (sarcasm).

(4) Challenge would be better off coming from someone directly effected by the S3CA loophole, such as an actual refugee claimant.

Even if this were true, it would be a huge conflict of interest. Why would a refugee claimant file a challenge to make rules harder for him/herself?

(5) Hearing this case is a waste of court resources

No, letting tens of thousands of illegals in at taxpayer expense is a waste of resources. This is just to stop it.

(6) Federal Court not the place to bring challenges to immigration law

Immigration is a Federal jurisdiction. The Federal Court has jurisdiction to hear applications for judicial review (when immigration and refugee claims are denied). They should also have the ability to decide what is proper procedure.

(7) This would involve making a ruling that would impact other “refugee claimants'” hearings and claims.

That is the point.

(8) Orginal document not worded clearly or specificly enough.

Thank you for the head’s up.

Of course, this is an overly simplified response. The real one will be coming soon enough.

Opinion: Why Pride is Obsolete

(We’re tolerant, except to police officers)

(Pride: lesbians v.s. transgenders)

(Brown and black added for “racial inclusion”)

Serious question: What is the ultimate goal of the LGBT movement?

  1. Achieving equality and acceptance in mainstream life
  2. Constantly viewing itself as a victim in need of protection
  3. Both (1) and (2)

We live in a country where gays and trans have full equality under the law, and have for many years.

So called “marriage equality” was settled in Canada back in 2005. That’s right, 14 years ago. There are also provisions in every Provincial human rights code to protect sexual orientation. And hate crime provisions have existed for many years in the Criminal Code.

We also live in a country where being trans is protected, and employers and schools are required to make accommodations. Bill C-16 seems to be both poorly written and overkill.

You would think all is great, but not so. Despite the very limited scientific knowledge on gender dysphoria, we are prohibited from questioning it, even in young children. Even in our children. Questioning if changing gender is possible will now net a hefty fine. Bake-my-cake-or-I’ll-sue is no longer just a punchline, at least in Colorado. And SOGI has creeped into elementary schools.

Note: The issues and concerns with how gender dysphoria is treated will be a topic for another post. Likewise with having young children transition.

The problem with advocacy groups is that they eventually run out of grievances to protest. And the need to celebrate a movement becomes less and less important.

If misgendering people, or suing over wedding cakes is the worst we have going on, then what genuine causes are left?

Answer: No serious causes.

Since LGBT people enjoy full rights, and equality under the law, why does this need to be flaunted in public every Spring/Summer? Isn’t the ultimate goal to live freely and without stigmatization as your true self? This is what activists don’t seem to realize.

And while a small march or parade seems harmless enough, some larger Prides are downright raunchy (Toronto is a specific example). Nudity and lewd behaviour do often happen, at sites where children are present. For the sake of readers, I’ll spare the details. What this does to promote equality is beyond me.

If LGBT people want to just go about their lives, nothing stops them. Legally, nothing can stop them, and the vast majority of people don’t care. Prides (and other such events) detract from this by bringing the issue up again and again, throwing it in the public’s face.

Yes, people had their rights violated in the past, but that ended decades ago. It doesn’t help to bring it up with people who had absolutely no involvement. It also doesn’t help when municipalities fund (all or in part) of these movements.

As an aside, LGBT activists often get triggered at the idea (often trolling) of a “straight pride”. Well, identity cuts both ways, doesn’t it?

Having equality is an important part of this nation, but your orientation or identity isn’t. It doesn’t need to be forced on the public. Rather, Canada should focus more on what built the nation, and what holds it together.

The question at the start seemed rhetorical, but is not. Activists want option (3).

Guys, you won. Go live your lives.

A Nationalist’s Rejection of Conservatism and Libertarianism

This is going to be quite different from the usual article. This is simply an ideological standing: Nationalism v.s. Conservatism and Libertarianism.

1. Disclaimer

  1. This is an opinion. Don’t be triggered.
  2. Feedback or rebuttal always welcome.
  3. Most of the following is backed up in other articles.

2. Rejection Of Conservativism


As is now a common rebuttal point, so called “Conservatives” don’t actually conserve anything. This is true throughout the Western world. Most “Conservative” parties are really just corporatists, trying to serve a business class.

  • Culture isn’t conserved. Multiculturalism is forced upon us.
  • Language isn’t conserved, and learning it becomes less of a priority
  • Heritage isn’t conserved. Our history can be rewritten.
  • Founding of nation isn’t conserved. Everyone is replaceable.
  • Respect for life isn’t conserved.
  • Any meaning of family isn’t conserved
  • Any religion which helped found society isn’t conserved.
  • With the above points, the “majority” culture, language or heritage dwindles, however, “minority” ones are encouraged to thrive.
  • The environment isn’t conserved (the lefties are right on this one).
  • Education standards aren’t conserved. School is big business.
  • Pensions and social benefits aren’t conserved.
  • Health Care isn’t conserved.
  • National borders aren’t conserved.
  • National sovereignty isn’t conserved.
  • Military strength isn’t conserved, nor veterans cared for.
  • Actual free markets aren’t conserved. Cronyism is rampant.
  • “Small Government” ideals aren’t conserved.
  • Employment prospects aren’t conserved, if they can be outsourced.
  • True free speech isn’t conserved

Any semblance of “social conservatism” has long been abandoned by these “self-identified” conservative parties. As such, money, growth, and individualism seem to be the only things that matter.

And while “Conservatives” like to crow about how responsible they are with the public purse, successive governments have heaped debts onto the populations. But they don’t like that detail pointed out.

Consider too: so called neo-cons who have little to no hesitation about starting foreign wars abroad either for resources or power.

Most topics on the list have been addressed elsewhere on the site. There is much more to a nation than GDP, unemployment and stock prices.

3. Rejection Of Libertarianism


Most of the above points can also be directed towards Libertarians. They have no interest in conserving anything either.

To be fair, Libertarians do have a genuine interest in smaller government overall. They push for less regulation and government involvement in people’s lives. Valid points.

An interesting note: while pushing for “individual” rights and freedoms, Libertarians (many anyway), take no issue with mass migration from cultures which push for “collective” powers. It never seems to dawn on them that these freedoms can be eventually voted away by the people they welcome.

It also never occurs to Libertarians (or Conservatives) that in pushing for multiculturalism, they are forging alliances with groups which will wield power by numbers. Individual preference doesn’t matter when an entire group votes another way.

4. Protect Individual Rights


Looking out for group identity doesn’t mean we should have to — EVER — give up our individual freedoms, such as these:

  1. Freedom of speech
  2. Freedom of association
  3. Freedom of the press
  4. Freedom of peaceful assembly
  5. Freedom of religion (except violent movements “cloaked” as religion)
  6. Private property rights
  7. Presumption of innocence in criminal proceedings

Most (if not all) nationalists also support these rights.

While Libertarians go on about the “dangers of collectivism”, it never dawns on them that collectivism can also help preserve these rights. If your group believes in individual rights, then as a group it can act to protect them.

Much harder to do when “individuals” work against “collectives” who oppose these freedoms, or your way of life.

5. Look To Generations Ahead


This should be commonsense, but is worth repeating: we should be looking ahead generations to what kind of society we will leave our descendants. It is not worth sacrificing it for our short term gain.

Left v.s. Right is a myth to obscure the real distinction of Nationalist v.s. Globalist. Other labels differ, but are irrelevant. Doesn’t matter if these “right-wingers” self identify as:
-Classical Liberals
-Conservatives
-Real Conservatives
-Libertarians

Policies should be aimed at protecting the items cited above (Section #2). After all, our ancestors left them to us.

As such, nationalism is the way forward.
OUR PEOPLE COME FIRST.

Different Approach On Fixing S3CA Loophole


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PETITION E-1906 (UN Global Migration Compact): CLICK HERE
PETITION E-2012 (UN Global Parliament) CLICK HERE

All personal court appearances are under “BLOG
Fed Court cases are addressed on right under “Canadian Media”.


IMPORTANT LINKS


CLICK HERE, for trying to use Notice of Application.
CLICK HERE, for trying to get a motion to extend time for A.J.R.
CLICK HERE, for background on the loophole.
CLICK HERE, for abuse of loophole in S3CA.

CLICK HERE, for the Canada/US Safe 3rd Country Agreement.
CLICK HERE, for the Immigration and Refugee Protection Act.

BACKGROUND INFO


The Federal Court has shot down multiple attempts to use application for judicial review (Section 18 of Federal Courts Act) to correct this problem. So, now the next approach taken: ask for straight-up enforcement of how the agreement was “intended” to be.

Specifically, it was never meant that anyone could bypass the S3CA simply by going around official checkpoints.

NEW ATTEMPT: CLAIM FOR ENFORCEMENT

Facts Alleged

  1. The Safe Third Country Agreement (S3CA) was signed between Canada and the United States on December 5, 2002, under then Prime Minister Jean Chretien.

  2. The Safe Third Country Agreement (S3CA) came into effect on December 29, 2004, under then Prime Minister Paul Martin.

  3. The intention behind this agreement is to recognize that both countries are “safe” countries, and that “asylum seekers”, shouldn’t be “shopping around” for a better country to arrive at.

  4. The Safe Third Country Agreement (S3CA) remains in effect legally, the only issue is of enforcing it properly.

  5. Recently, however, more than 40,000 economic migrants (fake refugees) have come into Canada from the United States. This poses security and financial burdens.

  6. Instead of deporting these illegal, economic migrants (fake refugees), the Federal Government has decided instead to take them in, at great expense to taxpayers.

  7. By far the most common location is Roxham Road, in Quebec, which shares a border with New York State.

  8. A loophole in the S3CA means this only covers “official ports of entry”, or official land border crossings. This means the law can be circumvented merely by going AROUND any official border crossings.

  9. While the wording in the official agreement may be poor, the intent was to avoid “asylum shopping”.

  10. No reasonable person could interpret the agreement to mean that the agreement could be
    bypassed by ignoring official checkpoints. That would reward lawbreakers.

  11. This is even more outrageous when considered that the US gets tens of thousands of asylum applications annually. Hardly a dangerous place.

Law On The Subject

(12) As specified on the Canadian Government’s own website, the point of the Safe Third Country Agreement (S3CA) is to prevent abuse. Here is a quote:

The Safe Third Country Agreement between Canada and the United States (U.S.) is part of the U.S.–Canada Smart Border Action Plan. Under the Agreement, refugee claimants are required to request refugee protection in the first safe country they arrive in, unless they qualify for an exception to the Agreement.

The Agreement helps both governments better manage access to the refugee system in each country for people crossing the Canada–U.S. land border. The two countries signed the Agreement on December 5, 2002, and it came into effect on December 29, 2004.

To date, the U.S. is the only country that is designated as a safe third country by Canada under the Immigration and Refugee Protection Act. The Agreement does not apply to U.S. citizens or habitual residents of the U.S. who are not citizens of any country (“stateless persons”).

(13) There is nothing vague or arguable about the intent of the agreement. People seeking asylum are required to apply for asylum in the first safe country they arrive at.

(14) Canada recognises the United States as a safe country. Period.

(15) It is further codified later on the Government website

Section 102 of the Immigration and Refugee Protection Act (IRPA) permits the designation of safe third countries for the purpose of sharing the responsibility for refugee claims. Only countries that respect human rights and offer a high degree
of protection to asylum seekers may be designated as safe third countries. To date, the United States is the only designated safe third country.

(16) And from reading Section 102 of the Immigration and Refugee Protection Act, we gain this information.

Regulations
102 (1) The regulations may govern matters relating to the application of sections
100 and 101, may, for the purposes of this Act, define the terms used in those sections and, for the purpose of sharing responsibility with governments of foreign states for the consideration of refugee claims, may include provisions
(a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture;
(b) making a list of those countries and amending it as necessary; and
(c) respecting the circumstances and criteria for the application of paragraph
101(1)(e).

Marginal note:Factors
(2) The following factors are to be considered in designating a country under
paragraph (1)(a):
(a) whether the country is a party to the Refugee Convention and to the
Convention Against Torture;
(b) its policies and practices with respect to claims under the Refugee Convention
and with respect to obligations under the Convention Against Torture;
(c) its human rights record; and
(d) whether it is party to an agreement with the Government of Canada for the
purpose of sharing responsibility with respect to claims for refugee protection.
Source: https://laws-lois.justice.gc.ca/eng/acts/I-2.5/page-19.html#h-56

(17) The United States, being the only officially designated “safe country” certainly means that people are safe there.

(18) To reiterate, it is the complete flaunting of a legitimate international agreement that is the issue. The S3CA was NEVER meant to mean anyone can claim asylum in Canada if they merely bypass official checkpoints.

(19) Under 101(1)(e) of the Immigration and Refugee Protection Act, so called “asylum seekers” who enter Canada illegally via the US would be inadmissible anyways, even without the S3CA.

101(1)(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence; or

(20) Again, clearly this would make these illegal economic migrants ineligible.

(21) And to beat a dead horse, these illegal, economic migrants (fake refugees) would be ineligible under 34(1)(1.b) of the Immigration and Refugee Protection Act. This is on the grounds that it would be subversion against an institution or process.
34(1)(b.1) engaging in an act of subversion against a democratic government, institution or process as they are understood in Canada;

(22) Also, allowing these illegal economic migrants (fake refugees), into Canada from the United States arguably violates AMERICAN law. Consider Section 101(a)(42) of the Immigration and Naturalization Act.

(42) The term “refugee” means
(A) any person who is outside any country of such
person’s
 nationality or, in the case of a person having no nationality, is outside any country in which such person last habitually resided and who is unable or unwilling to return to, and is unable or unwilling to avail himself or herself of the protection of, that country because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in
a particular social group,or political opinion, or
 (B) in such special circumstances as the President after appropriate
consultation (as defined in section 1157(e) of this title) may specify, any
person who is within the country of such person’s

Here is the source.

(23) Please note: the Canadian Federal Court is not being asked to rule on the validity of US refugee laws. This is added to acknowledge that the US does offer refugee status to approved asylum applicants. Again, this is not an attempt to amend or alter US law.

(24) Allowing this to happen is not saved by Perogative Powers. True, the Executive Branch of the Federal Government has the power to make treaties, and has legitimate purpose.

(25) However this is a treaty signed by a previous administration, that of Jean Chretien in December 2002. The treaty is valid, binding, and to this date, has never been rescinded. The current federal government must respect that.

(26) If the current administration has no interest in enforcing the S3CA as it was intended, then perhaps they should leave the agreement entirely.

Public Interest

(27) As should be obvious from the content of the Statement of Claim, this case is not about money, or getting rich from it. It is about enforcing the integrity of existing border security laws.

(28) The Federal Government has an obligation to the public to enforce agreements in good faith, and to not allow loopholes to undermine public policy.

Remedies Sought

(a) To declare the entire Canada/US border an “official port of entry” or an “official border crossing” to close the loophole in the S3CA.
(b) To deport automatically illegal economic migrants (fake refugees) attempting to cross in the future.
(c) To retroactively void/deny or invalidate any existing or previous claims (where these illegal crossings happen) on grounds that it takes advantage of the loophole

Loophole in Canada/US Safe 3rd Country Agreement: Notice of Application


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PETITION E-1906 (UN Global Migration Compact): CLICK HERE
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All personal court appearances are under “BLOG

Fed Court cases are addressed on right under “Canadian Media”.


CLICK HERE, for the final text of S3CA.
CLICK HERE, for article which explains what the loophole in the S3CA is.
CLICK HERE, for previous article, on closing the loophole.

Note: Service had been attempted a few weeks back via a “Notice of Motion” to extend time to file a challenge to the Canada/US Safe 3rd Country Agreement. However, the Department of Justice refused (yes refused) to accept it. So after some thought, this is how it will be done: Not seek to modify the agreement itself, but ask to get it enforced as it should have been. Different tactic, same end goal.

TO THE RESPONDENT:
A PROCEEDING HAS BEEN COMMENCED by the applicant. The relief claimed by the applicant appears on the following page.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicant requests that this application be heard at Calgary Federal Court.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application.

Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office.

IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU.

APPLICATION

This is an application for judicial review in respect of Approximately 40,000 economic migrants (fake refugees), have crossed the border into Canada claiming asylum. They are taking advantage of a loophole in the Canada/US Safe 3rd Country Agreement, which only covers official ports of entry. However, no one could REASONABLY believe that this is how the agreement was intended when it was drafted.

The applicant makes application for:

(a) To issue a permanent, binding injunction against the Federal Government letting economic migrants (fake refugees) who enter Canada from the United States (via Roxham Rd. and elsewhere), make asylum claims in Canada.

(b) To find that the S3CA “meant” that refugees couldn’t land in one country and hop to the other, that they have to file for asylum in the first country they arrive in. The agreement means Canada and the US view each other as “safe countries”.

(c) To find that the agreement should apply across the ENTIRE Canada/US border, and that “Official Port of Entry” limitation is just poor wording.

(d) To find that not honouring the spirit and principles of the Canada/US Safe 3rd Country violates the intent of that Agreement.

Alternatively an order that:

(e) If the Government of Canada chooses not to participate in good faith in the Safe 3rd Country Agreement, that an act of parliament is required to withdraw from it.

(f) If the Government of Canada chooses to alter the terms of the Safe 3rd Country Agreement, that it must renegotiate with the United States.

The grounds for the application are:

  1. First: Does allowing illegal economic migrants entering from the US to claim asylum violate the spirit and principle of the Canada/US Safe Third Country Agreement, provided they circumvent official border checkpoints? This treaty was signed in 2002 by bth parties. Should it be honoured as it was reasonably intended to be?

  2. Second: Does allowing illegal economic migrants (fake refugees), into Canada end up violating US immigration regulations? These migrants would be travelling to the US on tourist visas, with the intention of coming to Canada to claim asylum. Bear in mind, the Court is not being asked to make a ruling that would impact US laws.

  3. Third: Does allowing large numbers of unscreened, unvetted, illegal economic migrants (fake refugees), into Canada under false pretenses violate Section 7 of the Charter, which guarantees security of the person?

  4. Fourth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Sections 91 and 92 of the Constitution, considering that most social services are Provincial jurisdiction?

5. Fifth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Sections 5/6 of the Canadian Human Rights Code, since they get priority of social services over citizens and legal residents?

6. Sixth: Does allowing illegal economic migrants (fake refugees) to come across the Canada/US border violate Immigration and Refugee Protection Act: Sections 3(2)(a) since they aren’t refugees, and 3(2)(e), since doing so would not maintain the integrity of the system, and 10.1(4) since the application would be based on misrepresentation?

This application will be supported by the following material:

    Copy of Canada/US Safe 3rd Country Agreement
    Information from both Canada/US Immigration websites
    Documentation showing mass illegal migration across border
    Other documentation as needed