no. this needs to be appealed. this isn't a judicial question, and the court is overstepping it's bounds; i would appeal it on grounds of parliamentary supremacy, and argue it's not specific enough in scope to react to it. i do agree that vavilov is irrelevant.
so there's an objective criteria that allows the united states to be seen as a "safe country". this is from a government of canada website as a summary:
the legislation requires that the review of a designated country be based on the following four factors:
(1) whether it is party to the 1951 Refugee Convention and the 1984 Convention Against Torture;
(2) its policies and practices with respect to claims under the 1951 Refugee Convention, and its obligations under the 1984 Convention Against Torture;
(3) its human rights record; and
(4) 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.
In addition, the Governor in Council may issue directives to provide greater clarity on the review process. The current directives came into effect in June 2015. Under these directives:
For the United States:
The Minister of Citizenship and Immigration will monitor, on a continual basis, the four factors described above and report to the Governor in Council should circumstances warrant.
For any other countries that may be designated as safe third countries in the future:
The Minister of Citizenship and Immigration will review on a continual basis the four factors described above and will report to the Governor in Council regularly.
Reviews incorporate information obtained from a number of sources, including United Nations organizations, international human rights organizations, government agency reports, statistical records and policy announcements, relevant academic research, and media reports.
so, that's what actual domestic canadian law says about what it means to be a safe country.
i don't know how a court can walk in and undo that without even addressing it. if we put a country on the list and it hadn't signed that convention, the court could undo it. but, the court can't substitute itself for parliament and decide whether that is true or not, it can only interpret whether the laws are being followed or not.
that is, applying a correctness standard doesn't mean adjudicating whether the question is true or not, it means determining whether the law was applied correctly or not. giving deference to the proper branch, in context, is not about vavilov, it's about a separation of powers.
rather, the ruling did two things. first, it scratched out section e from the following law, which is what the above summarizes
101 (1) A claim is ineligible to be referred to the Refugee Protection Division if
(a) refugee protection has been conferred on the claimant under this Act;
(b) a claim for refugee protection by the claimant has been rejected by the Board;
(c) a prior claim by the claimant was determined to be ineligible to be referred to the Refugee Protection Division, or to have been withdrawn or abandoned;
(c.1) the claimant has, before making a claim for refugee protection in Canada, made a claim for refugee protection to a country other than Canada, and the fact of its having been made has been confirmed in accordance with an agreement or arrangement entered into by Canada and that country for the purpose of facilitating information sharing to assist in the administration and enforcement of their immigration and citizenship laws;
(d) the claimant has been recognized as a Convention refugee by a country other than Canada and can be sent or returned to that country;
(f) the claimant has been determined to be inadmissible on grounds of security, violating human or international rights, serious criminality or organized criminality, except for persons who are inadmissible solely on the grounds of paragraph 35(1)(c).
i posted the whole thing for context, because that's much more limited than i thought it would be. i thought they scratched the whole thing out....
the court is in it's jurisdiction here - it can cross that out. and, i don't really disagree. it's overly broad. but, by doing so, it's not taking the united states off the list - it's abolishing a specific clause in the criteria. further, my understanding is that these specific cases would have likely been denied under section c, anyways.
the other thing it scratched out is this:
what has the court done here? it has carried out an executive task, and that is beyond it's jurisdiction. it's not up to the court to decide whether or not this is true. that's not about deference, it's about separation.
what the court can do is order a review of the question, and people can then even challenge that review. but the court can't make an executive choice like that that determines the outcome of the review for them; that's not the correct branch of government.
so, what should they do?
i initially suggested they rewrite the law to more specifically address the things they were initially concerned about (like draft dodging after the iraq war), but i thought i was dealing with the actual agreement as something that got struck down. that is, i thought they struck down the stca itself, and they did not - those clauses are from the irpa. that's bad reporting from global, that's why you have to read things yourself, and i apologize for posting over bad coverage without debunking the msm article, first.
now that i realize that that's not the case, there really isn't anything to rewrite.
had the court only scratched out the first part, i'd accept the ruling.
but, they can't accept the judge going in there and doing the job of government in scratching out the second part. they need to appeal the second part on the grounds that the court is overreaching it's jurisdiction, and it can't reasonably make a decision like that in a court room.
that said, it may be time to launch a review and present a report around the topic. is the united states abiding by the cited international law? if it is, let us see the evidence for it, and a paper supporting it; if it is not, the law should be adjusted accordingly.
the point is that the question is being addressed by the wrong branch of government, and the executive has to push back for that reason. they may, in the end, agree with the court. but, they have to actually do that review first - which is, of course, subject to review, and even on a correctness basis, although vavilov would appear to suggest deference to the minister in situations where the decision is explicitly legislated.
so, they should appeal.
but, they should get the point and launch a review, too.
the ruling is here:
https://decisions.fct-cf.gc.ca/fc-cf/decisions/en/item/482757/index.do