Federal Court Of Appeal Has Struck Down A Challenge Against The Safe Third Country Agreement

On April 15th,2021 the Canadian Federal Court of Appeal struck down a challenge against the Safe Third Country Agreement (‘STCA’) with the United States. This agreement was signed in 2002 between Canada and the United States requiring refugees arriving in both countries to apply for asylum in the first country they arrive in, barring some exceptions (Federal Court of Appeal, 19-20). These exceptions include those who have family in Canada and unaccompanied minors. The agreement also does not apply to those who enter Canada at irregular border crossings or those arriving through air or sea travel (Federal Court of Appeal, 20). The STCA, nevertheless, has enabled Canada to turn many asylum seekers away at the Canadian border, leaving them to deal with the United States immigration system.

In July 2020, the Federal Court recognized the dangers asylum seekers face when being returned to the United States and found that “the designation of the United States as a safe third country under section 159.3 of the Regulations and the resulting ineligibility of refugee claimants in Canada under paragraph 101(1)(e) of the Act” infringed on the claimants’ section 7 right to life, liberty and security of the person as guaranteed by the Canadian Charter of Rights and Freedoms (Charter) (Federal Court of Appeal, 5-6). Unfortunately, the Federal Court of Appeal reversed this decision.

The Federal Court of Appeal based its decision on a finding that the Claimants Charter challenge was not properly constituted. Justice Stratas argued that singling out just two provisions (section 159.3 of the Immigration and Refugee Protection Regulationsand paragraph 101(1)(e) of the Immigration and Refugee Protection Act) for attack was wrong and amounted to creating a “strawman” (54, 62). Specifically, Justice Stratas argued that it is artificial to analyze these two provisions in isolation as if they were not part of an interrelated legislative scheme (46, 55). He pointed to two rules established through jurisprudence, namely that “legislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged” and “where administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation, must be challenged” (Federal Court of Appeal, 58 and 60).

Accordingly, all relevant parts of the legislative scheme, not just a general provision in isolation, need to be part of a Charter challenge (Federal Court of Appeal, 68, 70). In particular, Justice Stratas pointed to section102(3) of the Act as an important provision that the Claimants did not challenge (Federal Court of Appeal 61-62). Section 102(3) requires ongoing reviews on the United States, its human rights record, and its ability to protect refugees once it has been designated as a safe third country (Federal Court of Appeal, 40).

Based on this reasoning and the finding that an evidentiary record had not been established due to the claimants focus on only the two isolated provisions, Justice Stratas also argued that there was insufficient evidence to find a section 7 infringement (Federal Court of Appeal, 138).

Justice Stratas also made several problematic findings in his decision. He stated that the experience of the ten Claimants who brought the case are not enough to show that every person turned back from the border faces detention and maltreatment (Federal Court of Appeal, 138). This required a need to consider expert opinion, which he then discounted as only showing that there is a risk of detention in the United States (Federal Court of Appeal, 139).

Justice Stratas also stated that “psychological suffering is inherent in the plight of refugees fleeing their home country out of fear of persecution. Thus, one must ask whether sending refugee claimants back to the Untied States actually increased psychological suffering above this inherent level” (Federal Court of Appeal, 148). These remarks ignore the humanity of the asylum seekers and the suffering they face and frame the refugee journey as inherently harmful, as opposed to harm being the result of specific country policies and laws such as the STCA.

Jamie Liew, an immigration lawyer and professor in Ottawa, stated that the “reality that people experience has been completely ignored in this decision” and that it “raises questions about future cases where people may claim that their charter [rights] are violated” (Aljazeera). Similarly, Maureen Silcoff, the president of the Canadian Association of Refugee Lawyers has said that the decision is “a step backwards for human rights in Canada.” The decision discounts the reality asylum seekers in the US face and discounts their experiences and suffering. If the case is brought to the Supreme Court, hopefully the decision will be overturned.