The court also sent a challenge under Charter-protected equality rights back to the Federal Court
The federal regulation that allows Canadian border authorities to send asylum seekers back to the US when they arrive from that country to claim refugee status does not violate s. 7 of the Charter because of “legislative safety valves,” which can exempt claimants from return in certain circumstances, the Supreme Court of Canada has found.
The regulation at issue in Canadian Council for Refugees et al v Minister of Citizenship and Immigration et al. designated the US as a “safe country” for the purposes of the bilateral Canada-US Safe Third Country Agreement. The SCC unanimously found that while the designation engages liberty and security-of-the-person interests under s. 7, the legislative scheme could stand because it contained discretionary exemptions based on humanitarian, compassionate, or public policy grounds that ensure compliance with the principles of fundamental justice. Under s. 7 of the Charter, “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.”
While the court rejected the s. 7 challenge brought by the appellants, it allowed the part of their appeal concerning s. 15, the right to equality under the law. The appellants argued that certain provisions of the Immigration and Refugee Protection Act (IRPA) and its regulations violate Charter-guaranteed equality rights because women facing gender-based persecution and sexual violence are frequently denied refugee status in the US. Neither the Federal Court nor the Federal Court of Appeal had dealt with the s. 15 claim and the SCC remitted the issue back to the Federal Court.
While the SCC disagreed with the Federal Court that the “safety valves” providing a remedy for asylum seekers at ports of entry were “illusory in law,” it did recognize that there could be issues with their practical availability in future cases, says Andrew Brouwer, who acted for the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, who were among the appellants.
“I think if the Government of Canada is looking at how they need to respond to this, I think this is a clear signal that while the agreement may not be unconstitutional, individual exercises of administrative discretion, to be constitutional, need to make sure that individual claimants have access to those remedies,” he says. “And right now, we maintain they don't. I don't think that this decision alters that.”
The BC Civil Liberties Association (BCCLA), an intervenor, said that it was “heartened” to see that the SCC agreed with its argument that Charter rights apply where there is a causal connection between Canada’s actions and events occurring outside the country.
But the BCCLA added that it was disappointed that the court did not adequately consider the impacts on refugee rights.
“The BCCLA disagrees with the finding that the United States refugee process is not fundamentally unfair,” said a statement from the group. “It is contrary to Canada’s legal obligations that the United States obstructs or delays claimants’ access to the refugee process and punitively imposes detention or criminally prosecutes refugees who have entered the contrary illegally.”
“The Canadian safety valves relied upon by the court are, in practice, exceptional, highly discretionary, and largely inaccessible to refugee claimants.”
In 2002, Canada and the US signed the Safe Third Country Agreement, which is given effect in Canada through the IRPA and its regulations. According to the agreement, people seeking asylum in Canada are ineligible for refugee-status consideration if they enter Canada from the US.
Since inking the agreement, Canada has deemed the US a “safe country” pursuant to s. 159.3 of the IRPA regulations. The IRPA obligates the Governor in Council to periodically review countries designated as safe countries and prescribes factors to consider.
Under s. 102(1)(a) of the IRPA, a country can only be designated a safe country if they comply with non-refoulement obligations under international law. This means that Canada cannot deport an asylum seeker back to a country where they would face “certain kinds of irreparable harm, including threats to their life or freedom, torture, and cruel or degrading treatment,” said Justice Nicholas Kasirer, who wrote the reasons for the SCC.
Canadian Council for Refugees et al v Minister of Citizenship and Immigration et al. dealt with several people who arrived in Canada in 2017 and claimed refugee protection, fearing gender-based persecution and sexual violence in their countries of origin. But their claims were deemed ineligible to be referred to the Refugee Protection Division because they arrived via the US.
Canada returned one of them to the US, where she said that US officials detained her in solitary confinement and then in an “abnormally cold” facility among inmates convicted of criminal offences, without respecting her religious dietary restrictions, and without adequate medical care.
The Canadian Council for Refugees, Amnesty International, and Canadian Council of Churches joined the asylum seekers as public interest litigants and challenged s. 159.3 of the IRPA’s regulations, arguing that the designation of the US as a safe country is ultra vires the authority granted by the IRPA. They also argued that the provision and s. 101(1)(e) of the IRPA, violate ss. 7 and 15 of the Charter by authorizing immigration officers to summarily return refugee claimants to the US without considering the threat to their rights under international law.
The Federal Court rejected the ultra vires argument but ruled in their favour on the s. 7 claim and declined to rule on the s. 15 claim. The court struck down s. 101(1)(e) of the IRPA and s. 159.3 of the regulations. The respondents, the Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness, appealed, and the Federal Court of Appeal set aside the Federal Court’s judgment, finding that the applicants had not met the causation requirements for a Charter claim because they targeted the legislation rather than the administrative conduct.
"The Supreme Court of Canada has upheld the constitutional validity of the designation of the United States as a safe third country in that it meets the principles of fundamental justice under s. 7 of the Charter," said a statement sent to Canadian Lawyer from Minister of Immigration Refugees and Citizenship Sean Fraser. "The Safe Third Country Agreement regime continues in place. we will respond to the s. 15 Charter issues as the Federal Court process gets underway."
Fraser's statement continued that Canada and the US share responsibility to protect human rights and fundamental freedoms and the two counties will continue to work together to ensure that the agreement reflects that commitment and respect for domestic and international obligations.
"We remain actively engaged on migration, asylum, and refugee issues, at a time when global displacement is at record levels," Fraser said. "We will continue to work with like-minded partners globally to promote safe and regular pathways, and to support other countries in establishing their domestic frameworks to offer protection to refugees and asylum claimants."
In a joint statement, the Canadian Council for Refugees, Amnesty International Canada, and The Canadian Council of Churches said they are “disappointed that the Supreme Court of Canada failed to decisively rule that the Safe Third Country Agreement violates refugees’ rights, exposing refugee claimants to further harms while awaiting another legal challenge.”
“The Supreme Court of Canada’s decision today on the Safe Third Country Agreement (STCA) is a complex result that ultimately fails refugees,” they said.
The agreement contradicts Canadian values and Canada’s international obligations and “stands in stark contrast to the overwhelming public support for refugees,” they said. “Canada’s identity as a compassionate and welcoming nation is tarnished by this shameful agreement.”
“Today’s decision does not change the fundamental rights of refugees, nor does it absolve Canada from its international obligations under the Geneva Convention. It does not change our call for suspension of the agreement, recently extended across the entire shared border with the United States.”