This case is a challenge to the Canada-US Safe Third Country Agreement (“STCA”) and related provisions of the Immigration and Refugee Protection Act and the Immigration and Refugee Regulations (together the “STCA regime”). The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, an individual refugee claimant and her children have challenged the STCA regime on the basis that it violates s. 7 (life, liberty and security of the person) and s. 15 (equality) rights protected by the Canadian Charter of Rights and Freedoms.
The STCA is an agreement between Canada and the United States for shared responsibility over refugee determination when claimants who have traveled through either country present at the land border of the other. With a few exceptions, these asylum seekers are ineligible to make refugee claims at the Canadian border as they are presumed to have access to a fair process in the United States (and vice versa).
The claims brought by the litigants focus on how the STCA regime engages s. 7 rights to life, liberty and security of the person by exposing asylum seekers to a risk of being returned to a country where they face persecution, torture or death, as well as to a risk of being placed in detention in the US. The regime is additionally arbitrary and overbroad, and it violates the principle of non-refoulement. Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.
The STCA regime is also challenged on the basis that it violates the right to substantive equality protected by s. 15(1) of the Charter. Female-identifying asylum seekers experience serious obstacles that both disproportionately disadvantage them and increase their risk of refoulement on the basis of gender. Among these obstacles is the inconsistency in the adjudication of domestic violence protection claims in the US.
West Coast LEAF’s involvement
West Coast LEAF sought intervenor status in this challenge to assist the court with understanding how women asylum seekers are adversely affected by the STCA regime. We intended to focus our intervention on the need for a robust understanding of how women survivors of violence experience pre-existing disadvantage in the refugee determination process, especially where their refugee claims allege gender-based persecution. The STCA regime denies women refugees presenting at Canadian land port of entries the equal protection and equal benefit of Canada’s refugee determination process.
Unfortunately, West Coast LEAF’s application for intervenor status was denied. As a result, West Coast LEAF did not intervene in the hearing of the case. We have nevertheless been following developments closely.
The Federal Court of Canada heard this case from November 4-8, 2019. In a decision released on July 22, 2020, the Federal Court ruled that the legislative provisions enacting the STCA are invalid because they violate s.7 of the Charter and cannot be justified under s.1 of the Charter. In particular, the Federal Court found that the STCA regime interferes with the liberty and security of the person of STCA returnees because returnees are detained by the United States. The Federal Court declined to consider whether these provisions also violate s.15 of the Charter because of the disproportionate impact of the STCA regime on women.
In order to give Parliament time to respond to its decision, the Federal Court suspended its declaration of invalidity for 6 months, meaning that the STCA regime remains in effect. On August 21, 2020, the Federal Government filed an appeal of the decision to the Federal Court of Appeal.