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Federal Court of Appeal Justice David Stratas

SCC will hear appeal of failed constitutional attack on ‘Safe Third Country’ agreement with U.S.

Thursday, December 16, 2021 @ 2:08 PM | By Cristin Schmitz

The Supreme Court of Canada has granted leave to appeal from an important Federal Court of Appeal ruling which overturned the striking down of Canada’s Safe Third Country Agreement (STCA) on refugee claimants with the United States.

On December 16, 2021, the top court announced it will hear the appeal by the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and nationals of El Salvador, Ethiopia and Syria whose Charter challenge argues that designating the U.S. as a “safe third country” — thus making claimants entering from south of the border ineligible to claim refugee protection in Canada — has resulted in ineligible claimants being automatically imprisoned by U.S. authorities in situations where they were deprived of food, medical care and “basic human dignity”: Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.

In July 2020, Federal Court Justice Ann Marie McDonald declared that the STCA unjustifiably violated the s. 7 Charter 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: (Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship) 2020 FC 770).

Justice David Stratas, Federal Court of Appeal

Justice David Stratas, Federal Court of Appeal

But last April, Federal Court of Appeal Justice David Stratas, writing for a unanimous three-judge panel, overturned the lower court: (Canada (Citizenship and Immigration) v. Canadian Council for Refugees 2021 FCA 72).

Justice Stratas held that the challenge to the STCA, which requires people seeking refugee status to make their claim in the first country in which they arrive, should have been directed not at the designation of the United States as a safe third country, but rather at the review process under the Immigration and Refugee Protection Act (IRPA) and related administrative steps which cause that designation to continue:

“It was incumbent on the claimants to challenge that. But they did not do that,” Justice Stratas wrote. “Instead, they plucked two provisions out of this complex, interrelated legislative scheme and have singled them out for attack. This was wrong. By attacking those two provisions and only those two — as if the rest of the legislative scheme and administrative conduct under that scheme does not exist — the claimants have created a strawman and have asked us to decide on its constitutionality. This we cannot do. Courts deciding constitutional cases with big public impact do not deal with strawmen.”

The Federal Court of Appeal’s decision was decried by refugee advocates.

The appeal panel’s focus on a “hypothetical option” of challenging the STCA’s review process and administrative procedures was disappointing, Sharry Aiken, an associate professor at Queen’s University faculty of law who also serves as academic director of the school’s graduate diploma in immigration and citizenship law, said after that decision was handed down.

“The court didn’t find that conditions in detention were acceptable — what they said was that there is an effective safety valve,” she told The Lawyer’s Daily after judgment was handed down. “But the evidence brought forward in these cases was that the safety valve isn’t working.”

Aiken said the appeal panel was not wrong that, in theory, the review process could have been part of the challenge, “but doing so would have mired the case in years of litigation about privilege because the government has said the process is privileged information, and in the meantime real people are suffering. So, it was the expert opinion of those who advised on the case, including many administrative law scholars, that that pathway would have been not feasible in the circumstances.”

As per its usual practice, the Supreme Court of Canada did not give reasons for its decision to grant leave to appeal.

Issues raised before the top court include:

  • To obtain a Charter remedy, in what circumstances are claimants required to challenge the failure of legislative “safety valves” rather than the offending provision, and, in particular, is the government’s obligation to review the offending provision a “safety valve”?
  • How does the principle of judicial restraint apply to trial courts hearing multiple Charter claims?
  • In assessing the constitutionality of the removal of refugee claimants under s. 7 of the Charter, is the heightened “shocks the conscience” standard the only applicable principle of fundamental justice?

Under the 2004 STCA, the U.S. has been designated a safe country pursuant to s. 159.3 of the IRPA Regulations. As a result, claimants arriving at a land port of entry to Canada from the U.S. are deemed to be ineligible for refugee protection in Canada pursuant to s. 101(1)(e) of the IRPA.

The individual appellants who were deemed ineligible are a woman and her children from El Salvador, claiming refugee status based on gang violence and gender-based persecution. Other individual appellants are a Muslim family from Syria who left the U.S. following the issuance of the first travel ban by the U.S. government. Another appellant is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the United States. The appellant organizations were granted the right to participate in the case as public interest parties.

The appellants challenged the Canadian government’s failure to review the ongoing designation of the U.S. under s. 159.3 of the Regulations as rendering that provision ultra vires and not in conformity with s. 101(1)(a), 102(2) ad 102(3) of the Act. They also claimed that the designation and their ineligibility to claim refugee status unjustifiably infringed their ss. 15 and 7 Charter rights to equality and fundamental justice.

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