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, and eight refugee claimants from Syria, Ethiopia, and El Salvador (“the Appellants”) are challenging the STCA regime on the basis that it violates the s.7 life, liberty, and security of the person rights and s.15 equality rights protected by the Canadian Charter of Rights and Freedoms.
The STCA is an agreement between Canada and the US 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 because they are presumed to have access to a safe country and fair process in the US (and vice versa).
The Appellants’ claims are focused 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 also arbitrary, overbroad, and 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 was 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. “People making claims for protection in the US because of experiences of domestic violence and a lack of protection in their countries of origin face many challenges in the US system because of inconsistencies in how these cases are handled.
STATUS OF THE CASE
In July 2020, the Federal Court ruled that the STCA regime violates s.7 of the Charter and that this violation cannot be justified under s.1 of the Charter. The Court declined to address if the STCA regime also violates s.15 of the Charter because the s.7 Charter breach had been established. The Federal Court gave Canada six months to address the s.7 violation before the STCA regime would become invalid.
Canada appealed the decision on the s.7 violation to the Federal Court of Appeal. The Appellant’s then cross-appealed the Federal Court’s decision on several points, including its refusal to rule on the s.15 claim. Despite the Federal Court’s recognition of the harms posed by the STCA regime to asylum seekers, Canada successfully applied for a suspension of the decision pending the Federal Court of Appeal’s decision on the appeal and cross-appeal.
The Federal Court of Appeal heard the appeal and cross-appeal in February 2021, and released its judgment on April 15, 2021. The Court allowed Canada’s appeal overturning the Federal Court finding that the STCA regime unjustifiably infringed on s.7 of the Charter.
The Federal Court of Appeal did not allow the Appellant’s cross-appeal on the s.15 claim. The Appeal Court determined that the Federal Court had discretion on whether or not to deal with issues that it deemed unnecessary to the outcome of the case, and therefore, to decide not to decide the s.15 claim. The Federal Court of Appeal set aside the Federal Court’s judgment and dismissed the applications for judicial review.
In an important victory, on December 16, 2021, the Supreme Court of Canada granted the Appellants’ application for leave to appeal the decision of the Federal Court of Appeal. The Supreme Court of Canada will be hearing this case and examining whether the STCA violates refugee claimants’ Charter rights.
West Coast LEAF’s Involvement
West Coast LEAF, LEAF (Women’s Legal Education and Action Fund), and the David Asper Centre for Constitutional Rights were granted leave to jointly intervene in Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship) at the Supreme Court of Canada.
West Coast LEAF, LEAF, and the Asper Centre will highlight several problems that arise from the Federal Court of Canada’s decision declining to determine the s.15 equality claim and the Federal Court of Appeal’s judgment upholding that decision. By declining to decide the s.15 claim, the Court sidestepped a full and purposive constitutional analysis of the Charter that would ensure the protection of vulnerable minorities. Such analysis would allow for substantive equality to shape the Court’s view of the nature and magnitude of the harms arising from STCA, and its analysis of how to address those harms.
Ignoring the s.15 claims also relegates equality to a lower status among other Charter rights and affects access to justice for refugee claimants. The failure to address s.15 also minimizes the impact of the STCA on people making refugee claims on the basis of gender-based violence and gender identity and ignores a claimant group that has experienced historical disadvantage and intersecting harms.
We submitted our factum to the Supreme Court in June 2022. The hearing date is yet to be announced.
Written Argument – Supreme Court of Canada
Application for Leave to Intervene – Federal Court of Canada
Application for Leave to Intervene – Federal Court of Appeal
June 2022 Asper Centre blog: The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al