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Speaker's Corner: Canadian insight on U.S. executive order

All eyes are on the U.S. court system after an executive order by U.S. President Donald Trump barred citizens from seven Muslim-majority countries from entering the United States for 90 days. It stopped refugee processing for 120 days and put a complete halt on Syrian refugee processing. There was no guidance on dual citizens or U.S. permanent residents, which caused concern and confusion at the borders.

Canadian lawyers have their own questions.

The Canadian Prime Minister’s Office has clarified that Canadians who have dual citizenship with these seven countries will not be affected. Also, those with a valid Canadian permanent resident card and a passport from one of the seven countries will not be affected. This went against earlier reports that the U.S. would include dual citizens from the seven countries in the ban. The U.S. has now altered its stance to allow Canadian dual citizens as long as they present valid passports. This does not necessarily mean there is no longer any lingering confusion at the border though. And despite this ban, Canada will not increase its refugee quotas.

More than a year ago, Trump called for a “total and complete shutdown of Muslims entering the United States.” Despite this, it appears that the ban was hastily passed by an exclusive group and taxpayers are left to pay for the cleanup that is before the judiciary.

We appreciate the democratic process. Sometimes, a leader with whom we agree will be elected; sometimes, that will not occur. The same thought goes with discretionary orders. Our concern is that the ban infringes on constitutional rights and is overreaching. Therefore, it should not be upheld in its entirety.  

In terms of those following what is happening in the U.S. judiciary, the executive order was stopped, pursuant to a temporary restraining order from Federal District Court Justice James Robart, until the injunction may be argued. The restraining order was an emergency step made by the states of Washington and Minnesota. The analysis for a restraining order is similar to an injunction in that the moving party must demonstrate that the matter is likely to succeed on the merits, irreparable harm will be suffered, the balance of equity tips in the favour of the moving party and an injunction is in the public interest.

In our opinion, Robart’s order is not the full-fledged analysis that the public seeks. In his ruling, Robart said the executive order adversely affects the residents in the states of Washington and Minnesota by virtue of the fact that the public power (parens patriae) must protect citizens who are unable to protect themselves. Understandably, the adverse effect is in various areas including employment, education and the freedom to travel. Without providing an explanation, Robart stated the executive order damages the operations and missions of public universities, as well as injury to the states’ operations, tax bases and public funds. He then granted the motion for the TRO.

We believe that the main problem with Robart’s ruling is that it fails to elaborate on how there will be damage to the residents in the states of Washington and Minnesota.

After the restraining order was made at the District Court, the federal government lawyers representing the Trump administration requested a stay on the restraining order at the higher-level Ninth Circuit Court. Regardless of the decision, we may all assume that the ruling will continue to be appealed to the Supreme Court.

In Robart’s remarks, there are important insights into the U.S. constitution and it is agreed that there should be minimal infringement on one’s constitutional rights. For example, there are arguments based on the equal protection claim (the constitutional prohibition on discrimination, like s. 15 of the Canadian Charter of Rights and Freedoms, which states every individual has the right to the equal protection and equal benefit of the law without discrimination). There are also arguments on the establishment clause (how the government should not favour one religious group over another) and due process (the notion that the right to travel should not be taken away without some kind of due process).

The states argued that it was not possible to find that rational basis given the motivation behind this was particularly driven to target Muslims. In our analysis, it appears more likely than not that the restraining order will remain in place in some form. That’s due to comments of Circuit Judge Michelle Friedland, Senior Circuit Judge William Canby and Senior Circuit Judge Richard Randall Clifton, who are on the  Ninth Circuit Court of Appeal. A decision is expected at any time.

Canadian immigration lawyers may face a challenge in that Canadian family members who enter the U.S. on a visitor visa can make a refugee claim in Canada as an exception to the Canada-U.S. Safe Third Country Agreement, provided that they have close family members in Canada. Refugee claimants in the U.S. who have lost their case may now be actively hunted by the Department of Homeland Security to be deported back to their respective countries.

We believe that the until the restraining order is finally adjudicated, the Canada-U.S. Safe Third Country Agreement should be suspended so that refugee claimants do not have to make a refugee claim through the Canada-U.S. border and may enter Canada directly instead.

Cases like these test the depth of the roots of a nation’s constitution. Even the most temporary orders can cause significant impact on individuals. It remains to be seen what kind of harms will be caused to people who will have to get visas to these seven countries and for processing refugee claims. This is the U.S. federal government’s burden to prove.

Tanya Walker is a Toronto litigation lawyer at Walker Law PC and a bencher of the Law Society of Upper Canada. K.J. Chong is a litigator at Walker Law PC.

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