Safe Third Country Agreement Challenge [2022]

Status: Completed

19/03/2020Access to justice Case

Case summary

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-refoulment. Under international human rights law, the principle of non-refoulment 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 refoulment 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.

Federal Court of Appeal

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 the 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 highlighted several problems that arose 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. By sidestepping s. 15, substantive equality also did not 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 claim also relegated equality to a lower status among other Charter rights and affects access to justice for refugee claimants. The failure to address s.15 also minimized 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.

Decision

The Supreme Court of Canada agreed with the Asper Centre, LEAF and West Coast LEAF that there must not be a hierarchy of Charter rights in which equality rights occupy a lower tier, allowing the appeal in part. The Court ordered the challenge to section 15, based on the harms to women fearing gender-based persecution, to be sent back to Federal Court for determination. However, the Supreme Court of Canada unanimously upheld the STCA regime as constitutional under section 7 of the Charter, finding that the legislation did not breach the Applicants’ liberty and security rights.