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An Unsafe Third Country
An analysis of Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship)
(Photo credit: WP PAARZ)
The Federal Court of Canada’s decision in Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), released on July 22, 2020, signalled that the legislative provisions enacting the Safe Third Country Agreement (STCA) between Canada and the United States unjustifiably infringed the Canadian Charter of Rights and Freedoms. The decision has meaningful implications for both refugee claimants in Canada and asylum seekers globally.
What is the STCA?
The STCA is an international agreement between Canada and the United States which came into effect in 2004. Under the STCA, asylum seekers who arrive at a land port of entry (POE) in either country must make their claim in the first country they come to — Canada or the United States, with certain exceptions. The Immigration and Refugee Protection Act (IRPA) and its regulations give effect to the STCA.
How did this case come about?
The applicants were citizens of El Salvador, Ethiopia, and Syria who sought asylum in Canada after arriving from the United States at a Canadian land POE. These applicants were subsequently deemed ineligible to make a refugee claim due to the STCA. The respondents were the federal Minister of Immigration, Refugees and Citizenship, as well as the federal Minister of Public Safety and Emergency Preparedness.
The case hinged on the applicants’ argument that the STCA unjustifiably infringed their Charter rights The applicants claimed that the STCA violated section 7 of the Charter. The applicants also argued that the STCA violated section 15(1) of the Charter, claiming that the effects of the STCA disproportionately impacted women.
How did the Federal Court respond to this case?
Justice McDonald agreed that the STCA indeed infringed section 7 of the Charter. She further determined that section 1 of the Charter could not justify this infringement.
Justice McDonald held that the liberty and security of the person’s interests were engaged. In terms of liberty, one applicant wrote that she had “a terrifying, isolating and psychologically traumatic experience” of detention in solitary confinement, not knowing when she would be released. Evidence from lawyers with clients held in detention facilities indicated that “attempts to claim refugee status in Canada can be used by U.S. authorities as grounds to justify a large bond and ongoing detention.”
The applicants also recounted several violations of their security of person. One applicant wrote that she was given neither food nor water and was not permitted to bathe for the first three days of solitary confinement. Other applicants expressed fear of a substantive risk of forced return to a dangerous situation in El Salvador, due to the interpretation of the term “particular social group” under asylum law in the U.S. Additional applicants noted a lack of access to adequate medical care while they were detained.
Justice McDonald, in turn, determined that these infringements of the applicants’ rights to liberty and to security of the person were both overbroad and grossly disproportionate. Regarding overbreadth, she found that the deprivation of the applicants’ liberty had no meaningful connection to the purpose of the STCA — that is, sharing responsibility for processing refugee claims. In her words, “[t]he 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. The “sharing of responsibility” objective of the STCA should entail some guarantee of access to a fair refugee process.”
Justice McDonald also found that the STCA was grossly disproportionate, since the negative effects of the STCA outweighed its purpose. She wrote that the experience of one particular applicant alone was sufficient to “shock the conscience.”
Canada Border Services Agency (CBSA) officials returned asylum seekers whose claims were ineligible to authorities in the United States under the STCA. Given the conditions asylum seekers experienced in numerous United States detention facilities, Justice McDonald concluded, there was a causal correlation between the legislative provisions enacting the STCA and the infringement of the applicants’ section 7 rights.
Next, on section 1, the respondents argued that the pressing and substantial objective of the legislation enacting the STCA — the sharing of responsibility for refugee claimants — would not be met if the legislation was to be found unconstitutional. They drew attention to the sustainability of Canada’s refugee system should the number of claimants increase. Justice McDonald, however, found that the evidence for this argument was weak. She wrote that, historically, “Canada has demonstrated flexibility to adjust to fluctuations in refugee numbers in response to needs.”
The respondents also claimed that the STCA minimally impaired the applicants’ section 7 rights. The respondents argued that a fair review of the applicants’ detention in the United States was available, pointing to the fact that the applicants were ultimately released. Justice McDonald determined that the release of some applicants was not sufficient evidence that a fair review process existed, nor that the STCA had minimally impaired the applicants’ section 7 rights. Having found that the STCA infringed section 7, Justice McDonald declined to comment on section 15(1).
What comes next…?
At the time of writing, the STCA is still in effect. The Canadian government has announced that it plans to appeal the Federal Court decision. The decision and the upcoming appeal hold meaningful implications for several groups of actors in Canada and around the globe.
…For policymakers in Canada and abroad?
It is worth considering how the outcome of the appeal may inform future safe third country agreements. While the U.S. is the only country designated as a safe country under the IRPA Regulations, several other countries have pursued similar arrangements aimed at sharing responsibility for asylum seekers.
If the federal government’s appeal is dismissed and the Federal Court decision stands, this case shows that if Canada or a state with similar rights regimes decides to return asylum seekers to a state subject to a safe third country agreement, Canada (or the similar state) will violate the asylum seekers’ rights where the other country’s authorities infringe claimants’ rights to liberty or security of the person. However, this is provided that there is a causal connection between these infringements and the safe third country agreement. Overall, the Federal Court decision underscores the importance of detailed human rights evaluations and functional detention review mechanisms for any future safe third country agreements.
Building from this decision, advocates outside of Canada may look to their own regimes. As Professor Tally Kritzman-Amir wrote in a 2020 piece for Boston University International Law Journal on the Federal Court case, “[A] growing body of judicial opinions suggests that Safe Third Country Agreements cannot be used with disregard to their consequences on the rights of asylum seekers and cannot be a mere mechanism of externalization.”
…For asylum seekers and refugee lawyers in Canada?
Although Justice McDonald declined to address these arguments and they will not be handled on appeal, the appeal may re-open public conversation around the STCA from a gendered perspective. In fact, several developments indicate that gender-based discrimination is becoming an increasingly salient issue in Canadian refugee law more broadly. The Canadian Council for Refugees, which was a party in the Federal Court case, has identified a number of gender-related issues pertaining to Canada’s immigration and refugee systems. These issues include women migrant workers’ vulnerability to human trafficking, as well as the arrest and deportation of women reported by abusive partners. For these reasons, the applicants’ gendered perspective on asylum seekers’ experiences may prove a key point of contention in future legal challenges involving Canada’s immigration and refugee systems.
Closing thoughts
The Federal Court decision on the STCA is significant both in terms of Canadian constitutional law and human rights advocacy at the global level. In the words of Justice McDonald, “Canada ‘does not avoid the guarantee of fundamental justice merely because the deprivation in question would be affected by someone else's hand […the fact that STCA returnees are imprisoned by U.S. authorities, does not immunize the actions of Canadian officials from consideration.” In the interconnected landscape of refugee law and international treaties, Canada cannot afford to overlook how the country’s refugee system interacts with those of other states.