“Safe Third Country Agreement” Found to Infringe on Refugees’ Rights to Section 7

Federal Court Invalidates Part of STCA

On July 22, 2020, Madam Justice McDonald at the Federal Court ruled that the provisions enacting the “Safe Third Country Agreement” (STCA) infringe on section 7 of the Canadian Charter of Rights and Freedoms and that this infringement is not justified under section 1.[1] Thus, the provisions are of no force or effect.[2]

Justice McDonald has given Parliament 6 months to respond to this declaration of invalidity.[3]

What Is The STCA?

“The Safe Third Country Agreement” (STCA), was intended to help Canada and the U.S. share responsibility for refugees in a way that complies with the Refugee Convention.[4] It has been in effect since December of 2014, when Canada and the U.S. each declared both countries safe for refugees.[5]

It was given effect by section 101(1)(e) of the Immigration and Refugee Protection Act and by section 159.3 of the Immigration and Refugee Protection Regulations, designating the U.S. as a “safe third country.”[6]

The STCA deems that those who arrive to Canada through a land Port of Entry (POE) from the U.S. is ineligible to make a refugee claim in Canada, unless they have close family members in Canada and meet specific exceptions.[7] However, claimants arriving from the U.S. by air, sea, or between land POEs are eligible to have their refugee claims assessed.[8]

Who Brought The Claim?

The individual applicants, whose situations vary, sought refugee protection in Canada as they feared persecution in their home country.[9] However, as they arrived from the U.S., they were ineligible to make a refugee claim in Canada due to the STCA.[10] One of the applicants was immediately imprisoned upon returning to the U.S.[11]

Several organizations, including the Canadian Council for Refugees, Amnesty International, and Canadian Council of Churches, were granted the right to participate in the applications as public interest parties.[12]

What Exactly Was The Claim Challenging?

The applicants challenged the constitutionality of the legislation implementing the STCA and the individual applicants each sought judicial review.[13]

The applicants’ challenge to the STCA was on two fronts.[14] First, they argued that the legislation and regulations that make the STCA are ultra vires, as the Canadian government failed in its duty to review the ongoing “safe third country” designation of the U.S.[15] The applicants argued that the U.S. is not a “safe third country” within the meaning of the statutory purpose and that the Canadian government had knowledge of this, with U.S. asylum practices and policies not keeping in line UNHCR Guidelines.[16]

Second, they argued that the legislation provisions implementing the STCA are contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms.[17]

Decision of the Court

Justice McDonald found that the legislation enacting the STCA is not ultra vires.[18] However, she found that “the imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section 7 of the Charter,” and is not saved by section 1.[19]

Breaking It Down – Section 7 Of The Charter

Section 7 of the Charter provides that:

“everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”[20]

Therefore, section 7 considerations are two-fold. First, a claimant must demonstrate that the challenged law deprives her or him of the right to life, liberty, or security of the person.[21] If section 7 is found to be engaged, the claimant must then demonstrate that this deprivation is not in accordance with the principles of fundamental justice of arbitrariness, overbreadth, and gross disproportionality.[22]

Liberty And Security Rights

In this case, the issue in relation to section 7 was if:

“the actions of Canadian officials in returning ineligible STCA claimants to U.S. authorities, where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests.”[23]

Justice McDonald cited one of the applicant’s imprisonment as compelling evidence of section 7 liberty rights being engaged, as she was immediately imprisoned after her forced return to the U.S.[24] In her Affidavit, Ms. Mustefa explains her time in solitary confinement as a “terrifying, isolating, and psychologically traumatic experience.”[25] She described skipping meals as she was not able to access appropriate food, losing nearly 15 pounds.[26] After being released from solitary confinement, she was detained alongside people who had criminal convictions and states that the facility was “freezing cold.”[27]

Due to the conditions faced by those detained, security rights were also found to be engaged under section 7 of the Charter.[28] Another one of the applicants, ABC, feared the MS-13 gang, if she were forced to return to El Salvador.[29] Due to various barriers facing asylum seekers in the U.S., such as accessing legal advice and acquiring the necessary documents, Justice McDonald concluded in the case of ABC, that had she been detained in the U.S., there was a real risk of refoulement.[30] The use of solitary confinement and the overall conditions of detention were also factors that raised the security of the persons interests.[31]

Justice McDonald said that just because STCA returnees are imprisoned by U.S. authorities, that does not immunize the actions of Canada.[32]

Principles Of Fundamental Justice

In this case, Justice McDonald found that the legislation provisions of the STCA were both overbreadth and grossly disproportional.[33]

The STCA provisions were found to be overbroad, as the deprivation of liberty rights of STCA returnees has no connection to the “mischief contemplated by the legislature.”[34]

Additionally, the risks of detention and the loss of security of the person, which are facilitated by the STCA, were found to be grossly disproportional to the administrative benefits of the STCA.[35]

Saved By Section 1?

Section 1 of the Charter provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in its subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”[36]

Under section 1, the respondents bear the burden of proof and they need evidence to discharge this burden.[37]

The respondents argued that the pressing and substantial objectives of the legislations, which is the sharing of responsibility, have been met.[38] They argued that there would be an increase in the challenges that the Canadian refugee system would face if the volume of refugee claimants were to increase, and that although failed STCA claimants are subjected to detention in the U.S., there is a fair detention review process available.[39]

However, Justice McDonald found that argument to be weak, as in the past, Canada has demonstrated flexibility in adjusting to fluctuations in refugee numbers in response to certain needs.[40]

Thus, it was found that the STCA provisions were not saved by section 1.[41]

Wait, What About Section 15 Of The Charter?

Justice McDonald declined to address section 15 of the Charter challenge due to the finding of the infringement of section 7.[42]

Citations

[1] Canadian Council for Refugees v Canada (Immigration, Refugees, and Citizenship), 2020 FC 770 at para 162.  

[1] Ibid.

[1] Ibid at para 163.  

[1] Ibid.

[1] “Safe Third Country” online: Canadian Council for Refugees <https://ccrweb.ca/en/safe-third-country>.

[1] Supra note 1 at para 2.

[1] Ibid at para 3.

[1] Ibid.

[1] Ibid at para 5.

[1] Ibid.

[1] Ibid at para 92.  

[1] Ibid at para 7.

[1] Ibid at para 1.

[1] Ibid at para 9.

[1] Ibid.

[1] Ibid at para 65.

[1] Ibid at para 10.

[1] Ibid at para 80.

[1] Ibid at para 10.

[1] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter].

[1] Supra note 1 at para 85.

[1] Ibid at paras 85, 86.  

[1] Ibid at para 94.  

[1] Ibid at paras 94, 103.  

[1] Ibid at 96.  

[1] Ibid.

[1] Ibid.

[1] Ibid at para 115.

[1] Ibid at para 105.

[1] Ibid at para 106.  

[1] Ibid at para 110.

[1] Ibid at para 100.

[1] Ibid at paras 122-136.

[1] Ibid at para 131.

[1] Ibid at para 136.

[1] Charter, supra note 19 at s. 1.

[1] Supra note 1 at para 143.

[1] Ibid at para 145

[1] Ibid at paras 145, 146.

[1] Ibid at para 147.

[1] Ibid at para 149.

[1] Ibid at para 154.

[1] Canadian Council for Refugees v Canada (Immigration, Refugees, and Citizenship), 2020 FC 770 at para 162.

[2] Ibid.

[3] Ibid at para 163.

[4] Ibid.

[5] “Safe Third Country” online: Canadian Council for Refugees <https://ccrweb.ca/en/safe-third-country>.

[6] Supra note 1 at para 2.

[7] Ibid at para 3.

[8] Ibid.

[9] Ibid at para 5.

[10] Ibid.

[11] Ibid at para 92.

[12] Ibid at para 7.

[13] Ibid at para 1.

[14] Ibid at para 9.

[15] Ibid.

[16] Ibid at para 65.

[17] Ibid at para 10.

[18] Ibid at para 80.

[19] Ibid at para 10.

[20] Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, s 7 [Charter].

[21] Supra note 1 at para 85.

[22] Ibid at paras 85, 86.

[23] Ibid at para 94.

[24] Ibid at paras 94, 103.

[25] Ibid at 96.

[26] Ibid.

[27] Ibid.

[28] Ibid at para 115.

[29] Ibid at para 105.

[30] Ibid at para 106.

[31] Ibid at para 110.

[32] Ibid at para 100.

[33] Ibid at paras 122-136.

[34] Ibid at para 131.

[35] Ibid at para 136.

[36] Charter, supra note 19 at s. 1.

[37] Supra note 1 at para 143.

[38] Ibid at para 145

[39] Ibid at paras 145, 146.

[40] Ibid at para 147.

[41] Ibid at para 149.

[42] Ibid at para 154.