Loophole in Canada/US Safe 3rd Country: Motion to Extend Time for Judicial Review Application

CLICK HERE, for general information on application for judicial review.
CLICK HERE, for the Federal Court forms
CLICK HERE, for the Federal Court Rules, (see Part V, sections 300-319)
CLICK HERE, for the Federal Courts Act (see Section 18)

IMPORTANT NOTE:
(A) If it has been “less than” 30 days since the order/decision you want reviewed, you simply file an application for a judicial review.
(B) If it has been “more than” 30 days since the decision being reviewed, you first need to file a motion for an extension of time. If granted, then you file an application as in (A).

This article will focus on (B) and assume that more than 30 days has lapsed since the decision you are trying to have reviewed.

Jurisdiction of Federal Court (continued)
Marginal note:
Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.

Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.

Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.

Interim orders
18.2 On an application for judicial review, the Federal Court may make any interim orders that it considers appropriate pending the final disposition of the application.

Hearings in summary way
18.4 (1) Subject to subsection (2), an application or reference to the Federal Court under any of sections 18.1 to 18.3 shall be heard and determined without delay and in a summary way.

Exception
(2) The Federal Court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Content of the Motion Record
A/ Cover Page (Use form 66 for general heading)
B/ Table of Contents
C/ Notion of Motion (Form 359)
D/ Affidavit if swearing evidence (Form 80A)
E/ Any evidence attached to affidavit (a, b, c….)
F/ Written submissions/arguments

A Skeleton Motion Record


APPLICATION

(Court File No.)

FEDERAL COURT

BETWEEN:

Name
(Applicant)

and

Attorney General of Canada
(Respondent)

APPLICATION UNDER 18.1(2) of Federal Court Act (Extension of Time to File Application for Judicial Review)


                         (Motion Record)

                         (Your Information)

TABLE OF CONTENTS

1/ Table of Contents (Page A)

2/ Notion of Motion (Form 359) (Page 1-3)

3/ Affidavit swearing evidence (Form 80A) (Page 4-5)
-Exhibit A: Canada/US Safe 3rd country agreement (Page 5-9)
-Exhibit B: Exerps From Gov’t site on agreement (Page 10-12)
-Exhibit C: Article on Roxham Rd. Crossings (Page 13-14)
-Exhibit D: Gov’t announcing funding (Page 15-16)

E/ Written submissions/arguments (Pages 17-22)


(General Heading — Use Form 66)

NOTICE OF MOTION

                                                     (Motion in writing)

TAKE NOTICE THAT (my name) will make a motion to the Court in writing under Rule 369 of the Federal Courts Rules.

THE MOTION IS FOR:

-To gain an extension of time to file an application for judicial review (Rule 18.1(2) Federal Courts Act.

-The issue is to amend the Canada/US Safe Third Country Agreement to make the entire Canada/US border classified as a “port of entry”. This would effectively close the “loophole” in the existing agreement.

THE GROUNDS FOR THE MOTION ARE:

-Section 24 of the Canadian Charter of Rights and Freedoms states that in the event of a Charter breach, a litigant may seek relief in a court of competent jurisdiction

-Section 7 of the Canadian Charter of Rights and Freedoms states that people have the right to be secure in their persons. Allowing large numbers of unscreened illegal immigrants in jeopardises that protection.

-Section 15 of the Canadian Charter of Rights and Freedoms states that equality is a right. However, this loophole allows illegal border jumpers to “go to the front of the line”

-Section 91/92 of the Constitution separate Federal/Provincial Powers. These illegal border crossers are now being given housing, health care, education, etc…. paid for by the Provinces, except these issues are PROVINCIAL jurisdiction.

-Section 18(1) of Federal Courts Act states that the Federal Court has exclusive jurisdiction to handle such matters. This is consistent with Rule 300 of the Federal Court Rules.

-Section 18.1(2) of Federal Courts Act allows for the Federal Court to grant such an extension of time as sought.

-Section 18.1(3) and 18.1(4) of Federal Courts Act lists both powers and grounds for review which the Court has, and will ultimately be referenced, should the application to extend time be granted.

-Rule 303(2) in Federal Court Rules states that in an application for judicial review (which an extension of time is sought here), where no person can be named, the Attorney General of Canada shall be named as a Respondent.

THE FOLLOWING DOCUMENTARY EVIDENCE will be used at the hearing of the motion:

Affidavit swearing evidence (Form 80A)
-Exhibit A: Canada/US Safe 3rd country agreement
-Exhibit B: Exerps From Gov’t site on agreement
-Exhibit C: Article on Roxham Rd. Crossings
-Exhibit D: Gov’t announcing funding

(February 2, 2019)


(Signature of solicitor or party)
(Name, address, telephone and fax number of solicitor or party)

TO: (Name and address of responding party’s solicitor or responding party)

SOR/2004-283, s. 35


FORM 80A – Rule 80

AFFIDAVIT

(General Heading — Use Form 66)

AFFIDAVIT OF (Name)

I, (full name and occupation of deponent), of the (City, Town, etc.) of (name) in the (County, Regional Municipality, etc.) of (name), SWEAR (or AFFIRM) THAT:

1. (Set out the statements of fact in consecutively numbered paragraphs, with each paragraph being confined as far as possible to a particular statement of fact.)

Sworn (or Affirmed) before me at the (City, Town, etc.) of (name) in the (County, Regional Municipality, etc.) of (name) on (date).


Commissioner for Taking Affidavits
(or as the case may be)


(Signature of Deponent)


WRITTEN SUBMISSIONS OF APPLICANT

Part I: Jurisdiction
Part II: Issues
Part III: Facts
Part IV: Law
Part V: Cases Cited
Part VI: Order Sought

Part I: Jurisdiction
-Under Section 18 of the Federal Courts Act, and Section 300/301 of Federal Court Rules, the Federal Court of Canada has jurisdiction to hear such an application.
-Federal Court also has jurisdiction to grant a time extension to file application

Part II: Issues
-Can the Federal Court grant an extension of time (18.1(2) FCR) to file an application?
-Does the Court see the matter of public interest to see through?

Part III: Facts
-The Safe Third Country Agreement is between Canada and the United States.
-The S3CA was signed on December 5, 2002, and took effect December 29, 2004
-The obvious intent of the agreement is to recognize that both nations are safe, and to prevent abuse of refugee claims by people travelling between the 2 nations.
-Since 2015, however, more than 40,000 illegal immigrants have entered Canada illegally, primarily through Roxham Road in Quebec.
-Many illegals travelled to New York State on tourist visas, then travelled north.
-These illegals are now languishing in hotels at great public expense.
-Had these 40,000+ illegals gone to official border crossings, they would have been immediately sent back. However, going “around” ports of entry effectively allows illegal entry, and circumvents the agreement.

Part IV: Law
-The Canada/US Safe Third Country Agreement is an international agreement signed in good faith. However, it was not drafted with this loophole in mind.

Part V: Cases Cited

Part VI: Order Sought
-A time extension to file an application for judicial review


Progress In Legal Challenge To UN Global Migration Compact

(Liberal business sense, much like Liberal immigration policy)

(Calgary, on a beautiful, but chilly Friday evening)

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The full text for UN Global Migration Compact is RIGHT HERE.

Please sign this: PETITION E-1906 CLICK HERE

UN GMC Challenged In Calgary Fed Court, 300-635 8th Ave SW.
Case File: T-2089-18. Filed December 6, 2018.
CLICK HERE for more information.
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Update To Original Story
It appears that the wrong paper work has been filled out to initiate the proceedings in Calgary. It should have been written up as an ”application for judicial review”, as opposed to starting a claim. More to be posted as it develops.

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Section 18 of Federal Courts Act

Jurisdiction of Federal Court (continued)
Marginal note:
Extraordinary remedies, federal tribunals
18 (1) Subject to section 28, the Federal Court has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibition, writ of mandamus or writ of quo warranto, or grant declaratory relief, against any federal board, commission or other tribunal; and
(b) to hear and determine any application or other proceeding for relief in the nature of relief contemplated by paragraph (a), including any proceeding brought against the Attorney General of Canada, to obtain relief against a federal board, commission or other tribunal.
Marginal note:

Extraordinary remedies, members of Canadian Forces
(2) The Federal Court has exclusive original jurisdiction to hear and determine every application for a writ of habeas corpus ad subjiciendum, writ of certiorari, writ of prohibition or writ of mandamus in relation to any member of the Canadian Forces serving outside Canada.
Marginal note:

Remedies to be obtained on application
(3) The remedies provided for in subsections (1) and (2) may be obtained only on an application for judicial review made under section 18.1.
R.S., 1985, c. F-7, s. 18; 1990, c. 8, s. 4; 2002, c. 8, s. 26.
Previous Version
Marginal note:

Application for judicial review
18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought.
Marginal note:

Time limitation
(2) An application for judicial review in respect of a decision or an order of a federal board, commission or other tribunal shall be made within 30 days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected by it, or within any further time that a judge of the Federal Court may fix or allow before or after the end of those 30 days.
Marginal note:

Powers of Federal Court
(3) On an application for judicial review, the Federal Court may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
Marginal note:

Grounds of review
(4) The Federal Court may grant relief under subsection (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making a decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Marginal note:

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.

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Text Of Original Article
A formal legal challenge (via Statement of Claim), has been initiated against Canada’s participation in the UN Global Migration Compact. Here is where things currently stand.

(1) Statement of Claim: Filed and already served
(2) Motion Record: Finished and being served
(3) Notice of Constitutional Questions: Finished and being served

For more information, see the sections below.

(1) Statement of Claim

This was filed on Thursday, December 6. Cheeky piece done here, but nearly all of the details still apply.

(a) Relief sought: permanent injunction UN Global Migration Compact

(b) Parties: Plaintiff (you) v. Defendant (Her Majesty, the Queen)

(c) Facts alleged: Trudeau going to sign the deal, and promote globalism. Note, you can cite specifics of the UN Global Compact here, or later.

(d) Law being relied on
-Section 2(b) of Charter: Free speech
-Section 3 of Charter: Right to participate in democracy
-Section 7 of Charter: Security of the person
-Section 15 of the Charter: Equality
-Section 24 of the Charter: Remedies available in Court
-Section 32 of the Charter: Applicability of the Charter
-Section 38 of the Constitution: How to amend the Constitution
-Section 52 of the Constitution: Supremacy of the Constitution
-Sections 91 & 92 of the Constitution: Federal v. Provincial domain
-Criminal Code 380: Fraud
-Essentials of a valid contract lacking
-Doctrine of unconscionability

One correction from the last article: if you are ”only” filing against Her Majesty, the Queen, use form 48, instead of 171A. $2 filing fee instead of $150.

(2) Motion Record Compiled

This was prepared and filled out Friday, December 7, with the Court Clerk stamping the necessary forms. Service going out soon. Motion record contains:

-Notice of motion (Form 359)
-Affidavit (Form 80)
-Evidence:
(Exhibit A) Email from Liberal M.P. Stephen Fuhr
Click here for more detail
(Exhibit B) Maclean’s article from Immigration Minister Hussen
Click here, for the article
(Exhibit C) UN Global Migration Compact
Click here, for the 23 objectives.
-Written submissions (a.k.a. Arguments)

The Motion Record is to attempt a temporary injunction against the ”non-binding” UN Global Migration Compact. Given I was only visiting Calgary, a hearing by teleconference is preferable.

(3) Notice of Constitutional Questions

This is being served on all Provincial Attorney Generals/Deputy Attorney Generals. (Form 69)

See above section: 2(b); 3; 7; 15; 24; 32; 38; 52; 91/92 all being subjected to challenge.

Note: Each AG has the opportunity to: (a) support; (b) oppose; (c) be neutral

(4) Where Things Stand Now

Other than finishing with the mailings, there isn’t much to do at this point.

Currently waiting on responses from the Feds and the Provinces.

The story will be updated as progress is made

***********************************************************************

Update To Original Story
It appears that the wrong paper work has been filled out to initiate the proceedings in Calgary. It should have been written up as an ”application for judicial review”, as opposed to starting a claim. More to be posted as it develops.

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