TABLE OF CONTENTS
-Right to self-representation
-Federal Court jurisdiction
-Private & Public standing
-Charter Provisions Engaged
- 91 (POGG)
- 15 (Equality)
- 35 (Indigenous Rights)
- 38 (Amending process)
-High burden to strike out
-Amending as an option
1. Written Submissions
-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?
- Canada the US signed the S3CA in 2002. It came into effect in 2004.
Canada is recognized as a safe country, which provides protection to people seeking genuine asylum
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
Both Canada and the US receive hundreds of thousands of refugee applications annually.
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.
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”
There are AT LEAST 40,000 illegals who have snuck into Canada, likely many more.
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.
Preventing illegal immigration (and bogus refugee claims), is both a private interest, and a public interest.
Self represented people have every right to have their cases heard in court.
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
For example, the Mayor of Toronto, John Tory, has reported that illegals have taken up almost half of the available space in homeless shelters
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.
The Federal Government has also been paying the homeowners near Roxham Road — using taxpayer money — for the damage caused to their properties.
Recently, a group of illegal “refugee claimants” has announced plans to sue Quebec for subsidized daycare.
The flood of fake refugees has caused a strain on the health care system, particularly in Ontario and Quebec.
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.
The Government makes at least 3 serious misrepresentations.
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.
Second, there is a strawman argument that this is about refugee protections. Wrong, it is about protecting the public from illegal immigration.
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,  1 SCR 470, 2017 SCC 23 (CanLII)
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),  1 SCR 752 at 766 [ITO-International]:
Furthermore, the Federal Courts Act (under Rule 25) has original jurisdiction if no other court is designated as such.
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.
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
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,
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):
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:
- 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.,  1 SCR 401, 1988 CanLII 63 (SCC).
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?
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.
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),  3 SCR 511, 2004 SCC 73 (CanLII), the issue of duty to consult to brought up.
52: The case of Taku River Tlingit First Nation v. British Columbia (Project Assessment Director),  3 SCR 550, 2004 SCC 74 (CanLII), should also be considered, and for much the same principle.
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,  1 SCR 704, 2014 SCC 32 (CanLII) (S38). The Court cited the amending procedure.
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,  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.
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.
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.
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?
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.