The Safe Third Country Agreement (STCA) is an asylum agreement between Canada and the United States recognizing one another as safe countries for potential refugees to seek protection. Enacted on December 29, 2004, the Agreement holds that refugee claimants are required to request refugee protection in the first safe country they arrive in; unless they qualify for an exception under the Agreement. Ideally, the Agreement helps better manage access to the refugee system in both countries. In reality, the Agreement proves to be just another barrier that restricts refugee claimants already limited options and puts them in further danger. Under the STCA, refugee claimants who are considered ineligible by Canadian officials must be returned to the United States where they are at risk of detention and/or deportation.
In Canadian Council For Refugees v Canada (Immigration Refugees and Citizenship) 2020, three refugee claimants are challenging the constitutionality of the STCA on the grounds that the Agreement infringes on section 7—the right to life, liberty and security of the person—of the Canadian Charter of Rights and Freedoms. The three claimants brought forth multiple refugee expert’s and a number of additional undisclosed claimants who were willing to recount their experiences after being deemed ineligible by Canadian officials.
On July 22, 2020, the Federal Court of Canada rendered a decision finding that ineligible claimants are in fact detained and imprisoned as a penalty by the United States. They found that such consequences are “inconsistent with the spirit and objective” of the Agreement and thus, the STCA is in violation of the rights guaranteed by section 7 of the Charter.
Facts of the Case
The Applicants are citizens of El Salvador, Ethiopia, and Syria. Each of the Applicants arrived at a Canadian land point of entry (“POE”) from the U.S. and sought refugee protection fearing persecution in their home country. However, because they arrived from the U.S. at a land POE, the Applicants were ineligible to make a refugee claim in Canada by operation of the Safe Third Country Agreement (STCA).
The Applicants challenge the STCA on two fronts: (1) that the Canadian government failed in its duty to review the ongoing designation of the U.S. as a “safe third country” as required by ss. 102(2) and 102(3) of the Immigration and Refugee Protection Act (IRPA), and therefore the legislation and regulations make the STCA law are ultra vires (outside their legal power/authority); and, (2) that the legislation implementing the STCA is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms.
- Applicant (El Salvador) = Was granted a Motion for a stay of their removal from Canada.
- Applicant (Syria) = Was granted a Motion for stay, following which the family was granted Temporary Resident Permits. The family has since been granted permanent resident status.
- Applicant (Ethiopia) = Was sent back to the U.S. in which she was placed in a detention centre and was held in solitary confinement for the first week.
Analysis Made by Madam Justice McDonald
(1) Did the Canadian government fail in its duty to review the ongoing designation of the U.S. as a “safe third country” as required by ss. 102(1) and 102(3) of IRPA? Is it ultra vires?
- In regards to this issue, Justice McDonald brings forth the case of Canadian Council for Refugees Canada v Canada (2008) [CCR 2008].
- According to CCR 2008, IRPA does not require “actual compliance” or compliance in absolute terms. Further, the wording of ss. 102(3) of IRPA does not reference actual compliance with the Refugee Convention or the Convention against Torture. As a result, it is compliant with the factors set out in ss. 102(2) that is assessed.
- Justice McDonald notes that although the factual circumstances of the current Applicants differ, the present case and CCR 2008 maintain the same legal arguments aimed at the same legislative provisions.
- Since this matter has already been determined in CCR 2008, Justice McDonald found that the legislation enacting the STCA is not ultra vires.
(2) Are the legislations implementing the STCA contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms?
(A) Does the STCA infringe section 7 of the Charter?
Applicants argue that section 7 of the Charter (the right to life, liberty and security of the person) is triggered because failed STCA claimants are imprisoned upon being returned to the U.S.
The Respondents argue that even if section 7 is infringed upon, there are safe guards in IRPA, ongoing monitoring of ss. 102(2) factors, and discretionary remedies. Additionally, the Respondents argue that the Charter does not apply to U.S. law or the actions of U.S. authorities.
- Justice McDonald clarifies that having been physically present in Canada, individual Applicants do have the right to advance a Charter claim.
- As evidence and in order to reinforce their stance, the Applicants brought forth multiple anonymous individuals who testified that after being refused entry to Canada, each were detained by U.S. authorities.
- The Applicants as well bring forth evidence via affidavit (sworn testimonials) from lawyers who have provided assistance to those who have been detained. These lawyers assert that the act of an individual who attempts to claim refugee status in Canada has been and can be used by U.S. authorities as grounds to justify a large bond and ongoing detention.
- When claimants are rejected from Canada, Canadian Border Services Agency (CBSA) officials physically hand over claimants to U.S. officials. According to Justice McDonald, this provides a “sufficient connection” under section 7 of the Charter, as the act of returning ineligible STCA claimants to the U.S. facilitates a process that ultimately results in detention (this can be exemplified by Applicant (Ethiopia))
- In United States v Burns 2001, the Supreme Court of Canada found that extradition that potentially puts a life at risk deprives a persons of their liberty and security of the person.
- Justice McDonald finds that the use of solitary confinement and the general conditions of detention are factors that also raise security of the persons interest.
- Ultimately, Justice McDonald relies on claimants who testify that having been sent back to the U.S., they have been: detained, kept in poor detention conditions, denied medical attention, and have experienced racial inequalities. Through these findings, Justice McDonald affirmed that security of the person is engaged under section 7 of the Charter and their rights have been infringed.
(B) Is the infringement justified under section 1 of the Charter?
Section 1: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
- Justice McDonald finds that the Applicants have had no consideration of their risks or the substance of their refugee claim because of the STCA.
- Justice McDonald attests that claimants are returned to the U.S. under the STCA based on the understanding that they will have access to a fair refugee determination process. However, evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada.
- Justice McDonald finds that the “sharing of responsibility” objective of the STCA should entail some guarantee of access to a fair refugee process.
- In Justice McDonald’s view, imprisonment cannot be justified for the sake of, and in the name of, administrative efficiency. Justice McDonald concludes that the STCA legislation is overbroad and grossly disproportionate. Therefore, the section 7 infringement cannot be saved under section 1.
(C) Does the STCA infringe section 15 of the Charter?
- Justice McDonald declined to address the section 15 Charter challenge, as she had already found that the STCA infringes section 7 of the Charter.
The provisions enacting the STCA infringe the guarantees in section 7 of the Charter. The infringement is not justified under section 1 of the Charter. Accordingly, s. 101(1)(e) of the IRPA and s. 159.3 of the Immigration and Refugee Protection Regulation (IRPR) are of no force or effect pursuant to section 52 of the Constitution Act, 1982, because they violate section 7 of the Charter.
To allow time for Parliament to respond, Justice McDonald suspended this declaration of invalidity for a period of 6 months from the date of this decision. During this 6 months the STCA will remain in effect.
Update as of August 21, 2020: The Government of Canada has filed an appeal to the Federal Court of Appeal.