The judicial review will be based on statutory interpretation. Section 75 of the Bill is ambiguous. It does not make it clear which claims are subject to this clause: those that are already referred to the IRB, or those that are at the pre-referral stage. Even the Hansard of this Bill does not make it clear. Therefore, IRCC cannot act based on assumption.
Case ineligible due to bill C-12
- Thread starter Anonymousmoose
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1. "section 75 is ambiguous" - they'd lean towards Rizzo and Rizzo judgement for those and it is more about plausible interpretations: https://decisions.scc-csc.ca/scc-csc/scc-csc/en/item/1581/index.do - A provision isn't considered "ambiguous" just because it could be more clearer.
2. "It does not make it clear which claims are subject" - that is as an interpretive argument, courts lean towards structure, provisions, purpose, etc and very possible that courts would find the meaning sufficiently clear.
3. "Even the Hansard of this Bill does not make it clear" - they are secondary aids and the courts don't require Hansard to make it clear if the statutory text and context resolves everything.
4. "Therefore, IRCC cannot act based on assumption." - this is false. They are required to interpret and apply the law. They ACT on "reasonable interpretations" - I'd assume that before they made the decisions, those were already done. Courts can later on decide whether that interpretation would hold or not, but IRCC CAN ACT based on interpretations. Refer to #1 and #2 when it comes to courts interpreting this law. When a bill is passed, it is reviewed with a degree of research and already challenged to an extend that civil litigations won't be able to overturn. Even when a court reads this, they'll read it narrowly, which would mean that they'd send it back for a "revision" and rarely would impact the broader/bigger decisions there.
IRCC applies the law and courts review it later. Fair. The correct way to put it is: if IRCC tries to apply the new one-year bar to an already-referred claim, that decision can be challenged in court — and on the right reading of the law, it shouldn't hold.
But here's the bigger point you might be missing: forget Clause 75 for a second. Look at what Bill C-12 actually changes. Section 43 amends s.100 of IRPA — the section that deals with eligibility checks before a claim gets sent to the RPD. Even they have added a heading to the section "consideration of claims prior to referral". The whole ineligibility system, including the new one-year bar, is designed to operate at that early stage. Once a claim has already been referred to the RPD, that eligibility check is done. It's over. IRCC doesn't get to go back and redo it.
There's nothing in Bill C-12 that gives IRCC the power to pull back a claim that's already been referred and screen it again. That's not a framing argument — that's a question of whether IRCC even has the authority to do what you're describing in the first place.
So yes, IRCC acts on interpretations. But they can only act within what the law actually allows them to do. And re-screening an already-referred claim isn't something the law gives them power to do.
And on s.104 — they can't use it here for two reasons. First, s.104 is a prospective mechanism, not a tool for retroactive application of new substantive law. Second, and more importantly, look at the legislative history: every time Parliament amended s.101 to add a new ineligibility ground, it also amended s.104 to give IRCC the power to act on it against already-referred claims. That's a consistent, deliberate pattern. Bill C-12 amended s.101 but did not touch s.104. That's not an oversight — Parliament knows exactly how to amend s.104. It chose not to. You can't invoke a power Parliament chose not to grant.
Under Bell ExpressVu and Placer Dome, restrictions on refugee claimants are read narrowly. Under Gustavson Drilling and Dikranian, there is a strong presumption against retroactive application to already-crystallized claims. Under Multiform Manufacturing and Krayzel, Parliament's deliberate omission of a s.104 amendment — breaking a consistent prior pattern — means courts cannot read that power in. All three lines of authority converge on the same conclusion: s.104 cannot be used to enforce the new s.101 bar against a claim already referred to the RPD.
Your argument is pointing in a solid direction, but it needs tightening to land convincingly, especially if you're framing this for a judicial review. Section 75 is ambiguous because it does not specify whether it applies to claims already referred to the IRB or only to claims at the pre-referral stage. The absence of temporal qualifiers leaves both interpretations reasonably open.
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