Criminal Law

Have you been charged with a crime? Have you been denied legal aid? We may be able to help. Visit our criminal law page to read more able the kinds of cases we can take on.

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Do you need advice about custody and access? Questions about child support? DLS may be able to assist. To find out more about these services, visit our family law page.

Refugee and Immigration Law

Have you made a refugee claim? Do you need help filing a Pre-Removal Risk Assessment or Humanitarian & Compassionate Grounds application? We may be able to help.

Housing Law

Are you a tenant in rental housing? Is your landlord trying to evict you? Does your apartment need repair? We may be able to help.

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Are you a student at the University of Toronto? Have you been charged with an academic offence? Do you need advice about an academic appeal? Read more about our services for students to see if we can assist.

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Lost your job?  Treated unfairly at work?  Problems with your employer?  We may be able to assist you.

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We provide plain language workshops on a variety of legal topics. To request a workshop or learn more about our PLE program, contact us.


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News

Black & Indigenous Lives Matter

DLS stands in solidarity with the Black community and protestors around the world in raising our voices against anti-Black racism and police brutality.  The murder of George Floyd and the suspicious death of Regis Korchinski-Paquet are the latest in devastatingly long list of Black people’s lives that have been damaged and extinguished by police and other state actors.  These actions are not just the random acts of individual perpetrators, rather they are the product of and enabled by centuries of systemic oppression and institutional racism. 

We acknowledge the role of law as a tool of state oppression and control.  As a legal clinic and law school program, we recognise that we have much work to do internally to identify and confront how unconscious bias and racism shape the ways in which we think about, teach and practice law.  We accept and welcome the difficult conversations this commitment brings, for it is through these discussions that we will be challenged to do better.

In our work, we see daily the differential impact of the law on our clients – particularly racialized clients.  We will work to strengthen our relationships with key community agencies and advocacy groups to better under the gaps in service for Black and Indigenous people and to create stronger pathways for directed referrals.

As a part of the broader University of Toronto community, DLS is bound by the University’s Statement on Equity, Diversity and Excellence.  We strive to create an inclusive, welcoming environment for our staff, students and our clients.  We understand that a critical piece of this commitment is valuing and promoting diversity within DLS and are committed to prioritizing diversity in future hiring processes. 

We understand that it is our responsibility to educate ourselves on anti-Black and anti-Indigenous racism.  We are profoundly grateful for the leadership and commitment of so many valued community partners for sharing their wisdom, knowledge, and expertise.  Their voices, not ours, should be at the forefront of this conversation.  We encourage you to visit their websites and support their work.

Aboriginal Legal Services

Black Legal Action Centre

Black Lives Matter Toronto

Black Health Alliance

 

 

Safe Third Country Agreement (STCA) is Unconstitutional, says the Federal Court of Canada in Landmark Decision

Yesterday, Madam Justice McDonald, of the Federal Court of Canada (FC), released her decision declaring the Safe Third Country Agreement (STCA) between Canada and the US unconstitutional. This means that refugees who cross at land Points of Entry from the US to Canada cannot be returned to the US, where they risk being imprisoned.

This is a very important decision for refugees. The decision acknowledges that refugees who are returned to the US from the Canadian border are subject to unconstitutional violations of their rights. Imprisonment for having an ineligible refugee claim, without being heard, is traumatic and goes against the objective and spirit of the STCA. This acknowledgement is essentially a decision that the US is unsafe for many refugees. This opens the door for refuges to seek asylum in Canada when their safety is threatened in the US.  Downtown Legal Services represents Nedira Mustefa, ABC, DE and FG, four of the individual clients in the STCA challenge.  We congratulate our clients for their courage and bravery in bringing this challenge. 

Overview of Conclusion

The FC found that the STCA is invalid. Specifically, section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and section 159.3 of the Immigration and Refugee Protection Regulations (Regulations), referred to as the Safe Third Country Agreement (STCA), are unconstitutional. These sections are of no force or effect as they violate s. 7 of the Canadian Charter of Rights and Freedoms (the Charter) and are not saved by s. 1 of the Charter. The Government of Canada has 6 months to address the Court’s concerns.

 

A family tries to cross the border between Saint Bernard-de-Lacolle, Quebec, and Roxham Road in Champlain, N.Y.. (AP Photo/Charles Krupa)

Summary of the Decision

The Justice introduced the six issues in front of her, the core issues being (1) whether the STCA was outside of the enacting bodies’ jurisdiction (whether the STCA was ultra vires), (2) whether the STCA violates s. 7 of the Charter, if yes, (3) whether it is saved by s. 1, and (4) whether the STCA violates s. 15 of the Charter.

Justice McDonald relies on the Federal Court of Appeal (FCA) decision from 2008 in Canadian Council for Refugees v. Her Majesty the Queen as a full answer to the jurisdictional issue. Justice McDonald agreed with the decision from 2008 that jurisdictional issues cannot be raised on the basis of developing events or facts that occurred after the STCA came into force.  Ultimately, Justice McDonald found the legal arguments aimed at the same provisions as determined by the FCA in 2008 have been framed differently but have not changed in substance and she sees no ground to depart from the binding authority of the 2008 decision.

At this point, Justice McDonald began her s. 7 Charter analysis. Her conclusions herein are the landmark change in the law. Justice McDonald found that the STCA provision violates the liberty rights and security of the person interests enshrined in s. 7 of the Charter. Justice McDonald also found the STCA provision  overbroad and grossly disproportionate to its legislative objective. She then found this s. 7 violation cannot be saved by s. 1 of the Charter. In other words, the STCA is unconstitutional and invalid law.

In reaching her decision, she relied heavily on the testimonies of DLS clients Nedira Mustefa and ABC to conclude that the inevitable imprisonment and horrendous treatment in the US upon return, as well as the heightened risk of refoulement (return) to dangerous countries of origin, causes significant psychological and physical harms. These harms, which are a direct result of the Canadian decision to return claimants to the US, threaten the applicants’ rights to liberty and security of the person. Justice McDonald found the STCA to be overbroad as the resulting deprivation of liberty has no connection to the legislative objective of “sharing of responsibility”. She then determined the impacts on returned claimants to be grossly disproportional to the administrative benefits of the STCA.

A former border crossing used by refugees walking from the United States to enter Canada at Emerson, Manitoba. (Reuters/Lyle Stafford)

Finally, in finding the violation of s. 7 not to be saved by s. 1 of the Charter, Justice McDonald rejects that there is a pressing and substantial purpose for the STCA, finding it difficult to reconcile why some claimants are turned away at the border and others who fit in STCA exceptions can cross. Minimal impairment is not met, as there is no fair review process and claimants face imprisonment and related consequences upon arrival to the US. Lastly, the deleterious effects of detention and threats to security of the person are not proportional to the salutary effects of administrative efficiency.

Having found a violation of s. 7 rights, Justice McDonald did not deal with the section 15 equality arguments raised by the Applicants. The Applicants argued that changes to US asylum law increase the risk of refoulement of STCA claimants returned to the US who claim discrimination under the category “particular social group”. The Applicants further argued that the one-year bar on claiming asylum in the US disproportionately affects women due to the nature of the claims and the social norms in their countries of origin.

To the final issue on the Respondents’ argument that Ms. Mustefa did not have “clean hands”, Justice McDonald is clear: “I do not find that she intended to deceive the CBSA Officer or that she engaged in serious misconduct. Furthermore, there was no finding of misconduct on the part of the CBSA. Accordingly, I accept her evidence.” Either way, Justice McDonald allowed Ms. Mustefa’s judicial review application on the basis of the violation of s. 7 of the Charter.

This decision comes after years of legal advocacy and uncertainty for the individual litigants and all those impacted by the STCA. The Federal Court previously ruled in 2007 that the STCA was unconstitutional, based on gaping deficiencies in the US asylum system. Now, having taken into account the indisputable evidence of our clients’ lived experiences, Justice McDonald’s decision provides a clear reaffirmation that the US is not a safe country and Canada returning claimants to the US violates their human and Charter-protected rights.  

Read the Full Decision

Press contacts:

Prasanna Balasundaram, Staff Lawyer Refugee and Immigration Division, p.balasundaram@utoronto.ca, 647-210-0176­­­


To learn more:

CBC News 

Reuters 

The Guardian 


Footnote (Preliminary Issues):

Justice McDonald’s began the decision by addressing two preliminary issues. She first affirmed her decision from the February 21, 2019 motion to accept the expert evidence of Deborah Anker and Karen Musalo. Anker and Musalo’s personal views and external advocacy were found not to affect their ability to give expert evidence in these cases. Justice McDonald then denied the request for the late addition of new procedural fairness arguments raised on behalf of Nedira Mustefa. She determined it unfair to the Respondents and not in the interest of justice to allow the request.

Separated Uyghur-Canadian Families: Canada must bring them home

Khalil Mamut’s dream is to be reunited with his three young children.

Imagine escaping from a home where you do not feel safe, just to be captured and sent to a horrifying prison. There, you live in pain, and people accuse you of crimes you have not committed. Years later, you are freed and your name is cleared – but you now have no home. No country will welcome you in; no country will grant you asylum. Finally, one country opens its doors to you, but it is not a home. Your heart lies with your family halfway across the world. But, they will not let you in to reunite with your family. You have been separated for over a decade. You are kept apart from your children; you miss first words, first steps, and first days of school. They are growing up without a father only because their country fails to recognize the absurdity of your case and grant you the status you need to reunite with your family, to reunite with your children. 

This is the story of the three men

Ayub Mohammed’s daughter is growing up without a father.

Ayub Mohammed, Salahidin Abdulahad, and Khalil Mamut are three Uyghur men who left China after childhoods of discrimination, persecution, and hopelessness. They travelled to Pakistan, and then Afghanistan, in search of a new home. Before their dreams could be realized, Ayub, Salahidin, and Khalil were taken with nineteen other Uyghur migrants into American custody, shipped to Guantanamo Bay due to unsubstantiated claims that they were part of the East Turkestan Islamic Movement (ETIM) – an alleged terrorist organization that China convinced the United States to target. This led to over five years of detention in Guantanamo Bay, where they were aggressively and repeatedly interrogated. They were exonerated as early as 2003, and yet were kept in detention and isolation for several more years.  

Salahidin Abdulahad’s children desperately await their father’s return.

The US finally released the men from Guantanamo Bay, but refused to let them enter the States. Instead, the men were sent all over the world to countries that would accept them, without any say in where they would end up. Ayub is now in Albania, and Salahidin and Khalil in Bermuda, but their families are here in Canada; their kids growing up without their fathers. Downtown Legal Services is launching a campaign, aiming to bring to light the absurdity and inhumanity of their cases, revealing the continued pain and limbo that the Canadian immigration system has put on them. Posing no threat to Canadian national security, these men have been waiting over five years to reunite with their families and find a safe place to land.

They must be brought home. 

Uyghur Persecution: The Uyghurs are a predominantly Muslim Turkic ethnic minority group native to Xinjiang, China, that are persecuted by the Chinese government.  In 2018, a UN human rights panel reported than 1 million ethnic Uyghurs were detained in “re-education camps”, where detainees are forced to denounce their faith, learn Mandarin, study Chinese propaganda and chant Chinese slogans in prison-like facilitiesFormer inmates have reported punishments such as waterboarding, handcuffing and being strapped to “tiger-chairs” for those who fail to follow. Detainees have also reported brainwashingwidespread sexual abuse and forced compulsory sterilization within these camps

Guantanamo Bay:  All 22 Uyghur men who were detained at Guantanamo Bay Detention Center were cleared of “enemy combatant” status as early as 2003. Yet, the last of the Uyghur men were released from the detention center in 2014. For more information on the Uyghur men detained in Guantanamo watch Uyghurs: Prisoners of the Absurd” (NFB documentary).


The three men’s stories have been covered by the Star. For more details on their legal case, please visit this website

We are grateful for the funding provided by Legal Aid Ontario, the Law Foundation of Ontario, the Faculty of Law and students at the University of Toronto.