Canadian Refugee Procedure/RPD Rule 66 - Notice of Constitutional Question

RPD Rule 66 - Notice of Constitutional Question

The text of the relevant rule reads:

Notice of constitutional question
66 (1) A party who wants to challenge the constitutional validity, applicability or operability of a legislative provision must complete a notice of constitutional question.

Form and content of notice
(2) The party must complete the notice as set out in Form 69 of the Federal Courts Rules or any other form that includes
(a) the party’s name;
(b) the Division file number;
(c) the date, time and location of the hearing;
(d) the specific legislative provision that is being challenged;
(e) the material facts relied on to support the constitutional challenge; and
(f) a summary of the legal argument to be made in support of the constitutional challenge.

Providing notice
(3) The party must provide
(a) a copy of the notice to the Attorney General of Canada and to the attorney general of each province of Canada, in accordance with section 57 of the Federal Courts Act;
(b) a copy of the notice to the Minister;
(c) a copy of the notice to the other party, if any; and
(d) the original notice to the Division, together with a written statement indicating how and when the copies of the notice were provided under paragraphs (a) to (c), and proof that they were provided.

Time limit
(4) Documents provided under this rule must be received by their recipients no later than 10 days before the day on which the constitutional argument is made.

Commentary

The RPD possesses jurisdiction to decide questions of law pursuant to subsection 162(1) of the Act, which provides as follows:

162. (1) Each Division of the Board has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction.

Constitutional questions must be raised while the Board retains jurisdiction to consider a claim. A claimant cannot return to the Board to raise a constitutional issue after having lost a judicial review at the Federal Court because of s. 170.2 of the Act which provides that:

170.2 The Refugee Protection Division does not have jurisdiction to reopen on any ground — including a failure to observe a principle of natural justice — a claim for refugee protection, an application for protection or an application for cessation or vacation, in respect of which the Refugee Appeal Division or the Federal Court, as the case may be, has made a final determination.

Similarly, a claimant cannot raise a constitutional issue before a panel of the Refugee Protection Division regarding a provision of the IRPA that the RPD does not have the jurisdiction to consider or apply.

There is no need for notice of constitutional question in a case where the remedy sought is something other than a judgment that a statute or regulation is invalid, inapplicable, or inoperable on constitutional grounds. Other constitutional questions do not necessarily require a notice when, for example, a constitutional provision is raised to ensure the presumption of compliance with constitutional law generally.