SCC rules Safe 3rd Country Agreement with U.S. doesn’t infringe asylum seekers’ Charter s. 7 rights

By Cristin Schmitz

Last Updated: Friday, June 16, 2023 @ 6:27 PM

Law360 Canada (June 16, 2023, 5:59 PM EDT) -- The Supreme Court of Canada has ruled 8-0 that a regulatory provision designating the United States as a “safe third country” to which most asylum seekers arriving at the Canada-U.S. border can safely be returned to make their refugee claims is not ultra vires nor an infringement of their Charter s. 7 rights to liberty and security of the person.

However, the top court left the door open to a successful Charter challenge by sending the appellants’ s. 15 equality rights claims back to be decided by the Federal Court.

Under the Safe Third Country Agreement’s (STCA) first-safe-country principle, foreign nationals who cross anywhere along the Canada-U.S. border (not just at official ports of entry) are not eligible to make an asylum claim, unless they meet an existing STCA exception.

The Supreme Court’s much-anticipated June 16 judgment in an appeal argued last October allows, in part, the appeal of the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and nationals of El Salvador, Ethiopia and Syria, whose Charter challenge contends that designating the U.S. as a safe third country — thus making people entering from south of the border ineligible to claim refugee protection in Canada — has resulted in such asylum seekers being automatically imprisoned by American authorities in situations where they were deprived of food, medical care and “basic human dignity,” contrary to ss. 7 and 15 (see Canadian Council for Refugees v. Canada (Citizenship and Immigration) 2023 SCC 17).

In determining the three issues raised by the appeal, Justice Nicholas Kasirer’s indexed 112-page judgment analyzes the statutory and regulatory scheme of the Immigration and Refugee Protection Act (IRPA) that implements the STCA, as well as interpreting ss. 7 of the Charter in the factual context at bar.

The appellants did not challenge the validity of the Safe Third Country Agreement itself. Rather, they challenged the designation of the United States as a safe third country under s.159.3 of the IRPA Regulations as ultra vires and not in conformity with s.101(1)(a), 102(2) and 102(3) of the IRPA. The appellants also argued that their ineligibility to claim refugee status infringes their Charter s. 7 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 and their s. 15 rights in a manner not reasonable and demonstrably justified in a free and democratic society under s. 1 of the Charter.

 Supreme Court of Canada Justice Nicholas Kasirer

Supreme Court of Canada Justice Nicholas Kasirer

Justice Kasirer agreed with findings of the Federal Court judge below that the risk that a refugee claimant would be detained on their return to the United States and aspects of the detention conditions engage the liberty and security of the person under s. 7.

However, “the challenge to s. 159.3 of the IRPR ultimately fails,” he held. The IRPA and its regulations “contain exceptions, exemptions and review obligations that address the problems associated with ineligibility and removal from Canada.”

He reasoned, “These provisions give voice in Canadian law to the idea, expressed in Article 6 of the treaty, that each government should be free to examine any refugee status claim when it determines that doing so is in its public interest. In particular, even where ineligibility under the scheme would lead to deprivations of liberty or security of the person — as the Federal Court judge found — the legislative scheme’s discretionary exemptions ensure compliance with the principles of fundamental justice. In sum, the legislation is tailored to prevent certain infringements of s. 7 interests and, importantly for present purposes, survives constitutional scrutiny here because legislative safety valves provide curative relief.”

Justice Kasirer disagreed with the trial judge below that the safeguards in the scheme are illusory. Her assessment “did not consider all the relevant safety valves,” he explained. “This omission was an error of law that led her to improperly discount how the legislative scheme allows Canada to consider refugee status claims when the principles of fundamental justice so require, notwithstanding their presumptive ineligibility. As a result, I am respectfully of the view that the Federal Court’s conclusion that the designation of the United States for the purposes of the Safe Third Country Agreement breached s.7 cannot stand.”

Justice Kasirer went on to acknowledge, however, that “it may well be that, in practice, administrative decision makers do not always construe or deploy the legislative safety valves appropriately.”

In such cases, he said the legislation itself remains valid, but administrative and Charter relief remain available on an individual basis. “For instance, the Charter can prohibit administrative actors from returning refugee claimants to places where they would face circumstances that would shock the conscience of Canadians,” he wrote. “Yet, while some of the appellants have detailed the difficulties they faced in seeking refugee protection at Canadian land ports of entry, they have not asked this court to provide them with individualized relief. Instead, they focus their constitutional challenge solely on alleged defects in the legislative scheme itself in order to have s. 159.3 of the IRPR declared of no force or effect ... ”

Justice Kasirer went on to remit to the Federal Court the appellants’ claim that the legislation violates Charter-guaranteed equality rights — an issue not decided by the courts below.

“The appellants’ s. 15 claim rests on grave allegations that women facing gender‑based persecution and sexual violence are often denied refugee status in the United States, contrary to Article 33 of the Convention Relating to the Status of Refugees, Can. T.S. 1969 No.6,” Justice Kasirer said. “The evidentiary basis for the appellants’ s. 15 claim remains disputed and no factual findings were made in the Federal Court on which we can rely on appeal. It would be imprudent for this court to dispose of the equality rights claim as would a court of first instance, and thus leave the losing party with no avenue of appeal.”

After the Supreme Court upheld the impugned legislative scheme, Immigration Minister Sean Fraser told Hill reporters that the Liberal government won’t suspend the STCA. Responding to refugee advocates’ objection that the “safety valves” in the scheme are effectively useless, Fraser said, “The reality is that the court’s decision recognizes ... governments have the ability to co-operate with their neighbours when it comes to the management of their borders, including the protection of vulnerable people.”

Fraser added, “There may be certain individual cases where the public interest demands a different approach is taken and those safety valves can kick in in those instances. But for the vast majority of people who come and present themselves to make an asylum claim that do not qualify for the exemptions, most of them will have the ability to make a similar claim out of the system that exists in the United States.”

Erin Simpson of Toronto’s Landings, who with Andrew Brouwer, Michael Bossin, Heather Neufeld and Leigh Salsberg represented the appellant Canadian Council for Refugees and the other public interest litigants, told Law360 Canada, “The dangerous situation for refugees at the Canada-U.S. border remains. The court recognized that there are serious human rights issues with detention and refoulement from the U.S., but ruled that rights could be protected by ‘safety valve’ mechanisms at the border.”

However, she said, “the evidence is clear that these mechanisms are not accessible at the border, and the court’s decision behooves the government to take meaningful steps to make these measures accessible, and to introduce new exemptions; for example, for people fleeing gender-based persecution.”

Simpson added, “While we are heartened by the court’s recognition that the equality rights issues must be meaningfully addressed, this doesn’t change anything for people who need Canada’s protection now.”

She noted she doesn’t anticipate a lot of litigation by individual refugee claimants seeking remedies for safety valves that are not properly applied. “This is very much an illusory remedy,” Simpson reiterated. “It is highly uncommon for refugees to arrive at the border ready to mount a legal challenge, and there are no processes in place at the border to receive and process these challenges. I very much hope that counsel are able to assist in some cases, but it’s not a solution to the dangers posed by this Agreement.”

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 (see Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship) 2020 FC 770).

That was overturned on procedural grounds by the Federal Court of Appeal, which held that the Charter challenge 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 IRPA and related administrative steps which has caused that designation to continue (see Canada (Citizenship and Immigration) v. Canadian Council for Refugees 2021 FCA 72).

The Supreme Court of Canada did not agree. Justice Kasirer said the court preferred the view “shared by both parties on appeal to this court — that the regulation designating the United States was an appropriate focus of the Charter challenge. In particular, since the s.159.3 designation is the legislative basis for the relevant ineligibility determinations, it is properly subject to constitutional scrutiny.”

Photo of Supreme Court of Canada Justice Nicholas Kasirer, SCC Collection

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