Immigration lawyers across Canada are co-ordinating a constitutional challenge against Ottawa’s new asylum law, with three dozen cases already filed in Federal Court.
The challenges argue Bill C-12, which became law March 26, violates Canada’s Charter of Rights and Freedoms, including Section 7, which guarantees the right to life, liberty and security; and Section 15, which protects against discrimination.
The effort is being overseen by the Canadian Association of Refugee Lawyers and the Canadian Immigration Lawyers Association.
Both the lawyers and federal Department of Justice have requested “case management,” a process used in Federal Court for large or complex litigation that sees a judge appointed to rule on a small number of the files in order to decide on core constitutional questions.
In a letter to the court obtained by CBC News, the parties warn as many as 28,000 refugee claims could be reviewed under the new law.
“It’ll likely increase in numbers very quickly,” said Maureen Silcoff, a Toronto immigration lawyer who has submitted several cases for judicial review as part of the challenge.
The new law bars people from making refugee claims if more than a year has passed since their first entry into Canada. The law is retroactive to June 24, 2020, and applies to claims made on or after June 3, 2025. Bill C-12 also removes the option of making a refugee claim for people who crossed the Canada-U.S. border irregularly after the June 2025 date.
The federal Liberal Party has argued the law will reduce a backlog of claims and deter people from misusing the asylum system. But lawyers say it could have the opposite effect, in addition to causing undue hardship for thousands of refugee claimants.
“The irony is it’s not going to be more expeditious because the whole system will get tangled up in litigation,” Silcoff said.
More than a dozen refugee lawyers and advocates who spoke with CBC News say their offices are being inundated by people fearful of being returned to their home country.
“The rules are not clear. It’s very frustrating as a lawyer to have to tell clients, ‘We don’t know,'” said Nadine Edirmanasinghe, a refugee lawyer at the Community Legal Services of Ottawa.
“You are going to have these groups of people who are stuck.”
No exceptions for vulnerable migrants, lawyer says
Thiago Buchert, a Halifax-based refugee lawyer, has also submitted cases for judicial review in Federal Court to challenge the law’s constitutionality. He calls it “one of the harshest laws in refugee law,” because of its lack of exceptions for vulnerable migrants.
Immigration experts say the law disproportionately affects victims of domestic violence, 2SLGBTQ+ people and those whose situation has changed since they arrived in Canada.
Jared Will, a Toronto immigration lawyer specializing in constitutional law, said the equality arguments of the challenges “are quite strong.”
“The law will have disproportionate impacts on groups entitled to protection from discrimination under Section 15, and there appears to be no justification for those adverse effects and no attempts have been made to protect those who will suffer them,” Will said.
CBC News has contacted the Department of Justice for comment.
Lawyers say they are already seeing the effects of the law on clients.
“The hope has been pulled out from under them,” said Laïla Demirdache, another lawyer at the Ottawa clinic. Demirdache said the refugee claim of one of her clients was almost decided on by the Immigration and Refugee Board (IRB) when the law passed — but now her client is among the thousands who have received letters informing them their claim may now be ineligible.
Most refugee claimants affected by the new law will be redirected to a pre-removal risk assessment that could allow them to receive protection in Canada. The assessment is a paper-based process handled by immigration officers for which there is no official appeal preventing deportation, as outlined in guidelines by the United Nations High Commissioner.
The process offers fewer procedural protections than hearings before the IRB and the officers making the assessments receive less training and do not follow the same detailed guidelines as IRB decision-makers, Silcoff and others say.
“It has always been more a cog in the deportation machine,” Will said.
WATCH | Deportations had been rising even before Bill C-12:
The Canada Border Services Agency is removing people, largely refugee claimants, from the country at a rate not seen in over a decade as the Carney government moves to slow population growth. Refugee lawyers express concern deportations may ramp up further if Bill C-12 passes next year.
The federal government says the pre-removal process remains fair and legally sound.
“This well-established process assesses each person’s circumstances and ensures Canada does not remove individuals to a country where they would face serious harm,” Immigration, Refugees and Citizenship Canada said in a statement to CBC News.
Under the previous system where migrants could make refugee claims after having spent over a year in the country, claimants would generally receive a full hearing before the IRB, where they could testify and present evidence in person.
“This concept of having your day in court is quite fundamental to our democracy,” said Silcoff.
Fears some claimants could be left in legal limbo
Lawyers are particularly concerned about what the new law means for claimants from countries where Canada has a moratorium on deportation, including those facing high levels of violence, such as Haiti, Iran and Sudan.
Those people will not be offered pre-removal risk assessments anytime soon, leaving them in legal limbo — unable to reunite with their family, potentially for years, and making it complicated to obtain health care and permits to work and study.
“They will be faced with an almost indefinite uncertain situation,” said Mojdeh Shahriari, a refugee lawyer in Vancouver who represents clients from Iran.
Demirdache and her colleagues say they’re already seeing effects, including students abandoning graduate studies and refugee claimants experiencing mental health crises.
While the fight over Bill C-12 could take years, many lawyers say they’re already stretched thin by the volume of cases and the urgency of the stakes.
“We’re dealing with the most vulnerable people in society and they deserve to be treated with more respect, given what they’ve been through, and unfortunately that’s not the route that Canada has taken,” Canadian Council for Refugees president Asma Faizi.
