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 (“the Applicants”) 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 Applicants’ claims 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 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 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. Among these obstacles is the inconsistency in the adjudication of domestic violence protection claims in the US.
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. Since the Federal Court decided that the STCA is unconstitutional under s. 7 of the Charter, it declined to decide if the STCA regime also violates s. 15 of the Charter. The Federal Court gave Canada 6 months to address the s.7 violation before the STCA regime would become invalid.
Canada appealed the Federal Court’s decision on the s. 7 violation to the Federal Court of Appeal. The Applicants then cross-appealed the Federal Court’s decision on a number of 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 Federal Court’s 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. On April 15, 2021, the Federal Court of Appeal released its judgment. The Court allowed Canada’s appeal overturning the Federal Courts, finding that the STCA regime unjustifiably infringed on section 7 of the Charter. The Federal Court of Appeal did not allow the Applicants cross-appeal dealing with the Federal Court’s refusal to rule on the s.15 claim. The Appeal Court determined that the Applicants took issue with the Federal Court’s reasons, not the judgment, and that the Federal Court had discretion whether or not to deal with issues unnecessary to the outcome of the case. The Federal Court of Appeal set aside the Federal Court’s judgment and dismissed the applications for judicial review.
West Coast LEAF’s involvement
West Coast LEAF sought intervenor status before the Federal Court to assist the court with understanding how women asylum seekers are adversely affected by the STCA regime, especially where their refugee claims allege domestic or other gender-based violence. Unfortunately, West Coast LEAF’s application to intervene was denied.
West Coast LEAF later sought intervenor status before the Federal Court of Appeal as part of a coalition with LEAF National and the David Asper Centre for Constitutional Rights. The coalition proposed to make submissions on the access to justice concerns raised by the Federal Court’s refusal to rule on the s.15 claim. Unfortunately, the coalition’s application to intervene was also denied.
West Coast LEAF continues to follow the developments in this case closely and remains committed to the human rights of refugees fleeing gender-based violence and persecution.