Canada Closes the Door to Refugees, Supreme Court Locks It

Commentary on Canadian Council for Refugees et al v. Her Majesty The Queen 

By Tony Navaneelan


Does the United States knowingly render individuals to coun- tries which practice torture? Does the US detain refugee claimants and other aliens in a manner which violates international law? Can a Canadian court sit in judgment of the human rights practices of Canada’s closest ally? These are the questions which the Supreme Court showed no appetite for answering when they denied leave in the case of Canadian Council for Refugees v. Her Majesty the Queen in February 2009.

The case concerned a chal- lenge to the Safe Third Country Agreement (STCA) signed between Canada and the US, which came into force in December 2004. The STCA affects third-country nationals who have travelled to Canada or the US via their common land border. It allows Canada to immediately deport such persons back to the United States without ever hearing their claim for refugee protection – normally an entitlement under Canadian and international law. The US is likewise allowed to deport individuals back to Canada without hearing their claims.

The STCA is premised on the notion that both Canada and the United States are countries which adhere to the Refugee Convention and the Convention Against Torture (CAT). The Canadian Government argues that individuals should be expected to make their claim for protection in the first country they enter into, instead of travelling onward to the other.

Refugee advocates, however, have decried that there are substantial differences in the protections afforded claimants in Canada and the US. Many lawyers attest that clients who would have received protection in Canada have instead been returned to the United States, which then deported them (refouled in the legal parlance) back to their countries of persecution.

In the case before the Supreme Court, two contrasting pictures of the STCA were placed at odds with one another. Was the Agreement an administrative arrangement to deal with secondary movers or a backdoor means of refoulement contrary to Canada’s international human rights and Charter obligations? Enter the courts.

A legal challenge to the STCA was brought in the Federal Court of Canada by the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches. Their claim was based on public interest standing in the case. It was joined by an anonymous refugee claimant from Colombia who was hiding in the US and seeking entry to Canada. In a decision which came as surprise to many refugee advocates – not to mention the Government of Canada – the Federal Court struck down the STCA in November 2007.

Justice Phelan’s judgment turned entirely on his finding that the United States failed to comply with key obligations under the Refugee Convention and the CAT – a finding which rendered the STCA unlawful on both administrative and Charter grounds.

Following the predicted uproar from Ottawa, the Federal Court of Appeal (FCA) issued a stay of Justice Phelan’s decision until it could hear the appeal. Many refugee advocates were concerned the FCA would erode some of Justice Phelan’s determinations, watering down the impact of the decision. In fact, the FCA went much further. With language that was quite disparaging of Justice Phelan’s reasoning, the FCA reversed the Federal Court’s findings on both the administrative and constitutional law grounds.

On the administrative law ground, the FCA held that the statutory provision requiring Cabinet to ‘consider’ a country’s conformity with the Refugee Convention and the CAT prior to designating it a ‘safe third country’ had one plain and ordinary meaning. That is, it simply meant ‘consider.’ The term could not, as Justice Phelan reasoned, be stretched by constitutional and international law considerations to require that a country actually comply with the relevant human rights treaties prior to designation. According to the FCA, so long as Cabinet ‘considered’ and was satisfied of US conformity with the treaties, the vires of the Agreement was unaffected by whether or not the US actually complied with them.

The FCA’s Charter analysis was even more technical and curt. In fact, it failed to conduct any analysis at all. Rather, the FCA stripped the human rights organizations who brought the case of their public interest standing. The FCA noted that a refugee claimant who was denied entry at the border could her/ himself launch a judicial review of the decision. Thus, the Applicants failed to meet the key component of the public interest standing test: that there be no other reasonable or effective manner to bring the issue to court. The John Doe from Colombia was also barred from bringing a Charter challenge since the US had already granted him protection by the time the FCA heard the case – rendering his claim moot.

In denying the application to appeal the FCA’s decision, the Supreme Court’s continued a number of trends in its human rights jurisprudence in recent years. None of these can be termed rights-friendly but each is increasingly common.

Firstly, the Court once again signalled its extreme reluctance to judge the human rights practices of other countries and especially those of the United States. This trend was most apparent in the Court’s decision in Canada v. Khadr last year but is also evident in its stubborn refusal to grant leave in any of the so-called ‘US War Resisters’ cases.

Secondly, the Court has side-stepped another promising opportunity to clarify the relationship between the Charter and international human rights law. While the Court recently signalled a heightened role for international human rights law in interpreting the Charter (R. v. Hape; Canada v. Khadr), the jurisprudence in this area has left the government and rights-advocates completely at odds over what the law is.

Lastly, the Court’s refusal of leave in this case continues the steady erosion of Charter protections for non-Canadians. While the Court shunned the notion of differential rights regimes for nationals and non- nationals in the early Charter era, recent jurisprudence has steadily reversed this trend (Charkaoui v. Canada; Medovarski v. Canada). Most tellingly, the Supreme Court has not heard a case concerning refugee law in seven years.

In denying leave in Canadian Council of Refugees, the Court missed an opportunity to stall, if not reverse, these trends. But this case may not be the last time the STCA comes before the courts. Here, the FCA dismissed the Charter arguments brought by the Applicants in this case on a matter of standing; it never considered the merits of the challenge. As such, it is still open for advocates to find a refugee claimant who did approach the border and was denied entry (and thus would almost certainly be in US detention) and to launch a Charter challenge in her/his name. In other words, the STCA has closed the door to refugees and, by denying leave, the Supreme Court has locked it. But the key has been left in the door.