Reprint from the International Enforcement Law Reporter (24 Sep. 2020).

Authored by Mitchell Beebe; Staff Editor

In an unusual rebuke by one of America’s closest allies, the Canadian Federal Court decided that the Safe Third Country Agreement (“STCA”) between the United States and Canada was unconstitutional. The Court determined that in light of recent U.S. immigration policies, it was a deprivation of human rights for Canadian authorities to return refugees back across the border where they are subject to imprisonment in poor conditions. Consequently, the continued enforcement of the STCA was a violation of Canadian Charter of Rights and Freedoms. The decision will void the STCA in six months time and will require the Canadian government to take concrete steps towards adopting different border control policies.

 

Background

 

Curbing immigration was a signature campaign promise of President Trump, and his administration has followed through on this with tough immigration policies in the United States. Separated families and crowded detention centers at the U.S.-Mexico border have been the face of these policies to the public eye. However, often overlooked has been the adverse impact these policies have on refugees from many other parts of the world, and this dispute has partly played out on America’s other border to the north by operation of the U.S.-Canada STCA.

 

The STCA mandates that refugees arriving at a Canada land Port of Entry (POE) from the U.S., or vice versa, are ineligible to make a refugee claim and must be returned across the border.[1] Exceptions may be made where there are concerns over “family unity, the best interests of children, and the public interest.”[2] This arrangement was designed to deter “asylum-shopping” and help both countries manage cross-border flows of refugees by requiring that they make a claim for asylum in the first “safe third country” that they reach.[3] Under the Canadian Immigration and Refugee Protection Act (“IRPA”), a safe third country is one other than Canada and the country of persecution where an individual is considered safe to make a claim for asylum.[4] To date, the U.S. is the only country designated by Canada as a safe third country.

 

The consolidated Applicants challenging the validity and constitutionality of the STCA are citizens of El Salvador, Ethiopia, and Syria who attempted to cross from the U.S. into Canada seeking refugee protection.[5] Each of the Applicants first arrived in the U.S. after fleeing various perils in their home countries, such as severe gang violence and ethnic and religious persecution.[6] After attempting to enter Canada, the Applicants were all found ineligible to make a claim for asylum under the STCA, and either returned to the U.S. or granted a temporary stay of removal pending the decision in this case.[7]

 

The Decision

 

The Applicants challenged the STCA on two fronts in the Canadian Federal Court. First, they argued that the Canadian government failed in its duty to review the ongoing designation of the US as a “safe third country” as required by the IRPA, and therefore the legislation and regulations that make the STCA law are ultra vires.[8] Second, they argued that the STCA is contrary to the Canadian Charter of Rights and Freedoms (“the Charter”) and therefore unconstitutional.[9] Justice McDonald determined that the STCA was not ultra vires, but in the most significant aspect of the opinion concluded that it was a violation of the Charter and unconstitutional.

 

Central to the decision declaring the STCA unconstitutional was Section 7 of the Charter, which provides that “[e]veryone has the right to life, liberty, and security of the person and the right not to be deprived thereof except in accordance with the principle fundamentals of justice.” Section 7 considerations require that a claimant first demonstrate that the challenged law deprives her of the right to life, liberty, or security of the person. If so, the claimant must then demonstrate the the deprivation is not in accordance with the principles of fundamental justice.[10] These principles are concerned with “whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, over-broad, or arbitrary effect on one person is sufficient to established a breach of s. 7.”[11]

 

In the first step of the analysis, the Court found that enforcement of the STCA led to serious deprivations of both liberty and security of the person. Unless among the few who can gain access to counsel and appeal for a stay of removal, refugees denied entry under the STCA and returned to U.S. authorities are automatically detained for an average of thirty-one days. Detainees receive a poor diet and little medical care, minimal outside communication, and are often subject to solitary confinement. In addition, U.S. asylum law places refugees at heightened risk of refoulement back to their home countries where they once again face peril. In Justice McDonald’s view, these circumstances amounted to a clear deprivation of liberty and security of the person under s. 7 of the Charter.

 

Proceeding to the second step of the analysis, the Court found that enforcement of the STCA was so “inadequately connected to its objective[s]…or [went] to far in seeking to obtain [its objectives]” that it was not in accordance with the principles of fundamental justice.[12] The objective of the STCA was the “sharing of the responsibility for the consideration of refugee claims with countries that are signatory to and comply with…the Convention and have an acceptable human rights record.”[13] Because the Applicants received no consideration of the risks of deportation or the merit of the their refugee claims, and officials blindly relied on U.S. assurances of access to a fair refugee determination process, Canadian authorities did not meet this “sharing of responsibility” objective of the STCA. Therefore, Justice McDonald concluded that the legislation was overbroad.

 

Continuing with its analysis of whether the fundamental principles of justice were violated, the Court also found that the STCA legislation was grossly disproportionate. Here, the test balances “the negative effects of the law on the individual as against the purpose of the law.”[14] The Court recognized the benefits of administrative efficiency that the STCA provides, but this was severely outweighed by refugees who, upon deportation to the U.S., are subject to poor detention conditions, solitary confinement, and the risk of refoulement.

 

The Court concluded by recognizing its decision to invalidate the STCA as currently enacted presents a significant challenge for lawmakers in the country to address. Consequently, the declaration of invalidity was suspended for a period of six months from the date of the decision, July 7, 2020, in order for Parliament to respond. During this interim period, the Canadian government announced that it will continue to enforce the STCA.[15]

 

Fallout from the Decision

 

This ruling has been touted by activists as a major victory for refugee rights, although calls for Ottawa to immediately suspend the agreement ahead of the invalidation order have fallen on deaf ears. Meanwhile, the Public Safety Minister announced that the government intends to appeal the court ruling despite warnings not to do so, citing factual and legal errors in some of the Federal Court’s key findings. This may damage Prime Minister Justin Trudeau’s political image, as he has often criticized President Trump on his administration’s immigration policies. By moving to challenge the Federal Court’s decision, as well as opting to continue to comply with the STCA, the Prime Minister has now placed himself in a difficult position. Several members of Parliament have voiced their disappointment in the decision to appeal, but this case is likely headed to the Supreme Court of Canada.[16]

 

Across the border, the Court’s decision will not be popular with the Trump Administration. The opinion was careful not to pass judgment on U.S. policy and cabined the focus around Canada’s complicit role in enforcing the STCA, but it still shed a bright light on flaws in the U.S. asylum system. However, the American reaction has been reserved so far, and the Canadian government signaled its intent on working with the U.S. to fix the STCA if they must, rather than scrap the agreement.[17] One thing that is clear is that this issue is far from over, and the outcome of the U.S. election will play a major role in how it is resolved or whether the STCA will survive altogether.

 

 

 

 

 

 

[1] Canadian Council for Refugees v. Canada, 2020 FC 770, para. 3.

[2] Government of Canada: Canada-U.S. Safe Third Country Agreement, https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html (last visited Aug. 23, 2020).

[3] Id.

[4] See Immigration and Refugee Protection Act, R.S.C. 2001, c. 27 (outlining factors to consider for designation as a safe third country, such as whether the country is a party to the Refugee Convention and Convention Against Torture, its policies and practices under these conventions, its human rights record, and whether it is party to an agreement with Canada for the purpose of responsibility sharing in respect to refugee protection claims).

[5] Supra note 5, at para. 4.

[6] Supra note 5, at paras. 11-25.

[7] Supra note 5, at paras. 16, 20, 25.

[8] Supra note 5, at para. 9.

[9] Supra note 5, at para. 10.

[10] Carter v. Canada (Attorney General), 2015 SCC 5, para. 55.

[11] Canada (Attorney General) v. Bedford, 2013 SCC 72, para. 123.

[12] Id. at para. 107.

[13] Canada v. Canadian Council for Refugees, 2008 FCA 229, para. 75.

[14] Supra note 5, at para. 132.

[15] Supra note 2.

[16] Samantha W. Allen, ‘They are just buying time’: Lawyers Weigh Feds’ Appeal of Judgment Suspending Canada-U.S. Asylum Agreement, The Hill Times (Sept. 2, 2020), https://www.hilltimes.com/2020/09/02/they-are-just-buying-time-lawyers-weigh-feds-appeal-of-judgement-suspending-canada-u-s-asylum-agreement/261888.

[17] Jim Bronskill, Feds to Appeal Ruling That Struck Down Safe Third Country Agreement, Global News (Aug. 21, 2020), https://globalnews.ca/news/7291026/safe-third-country-agreement-federal-appeal/.