Federal Court Finds Safe Third Country Agreement Unconstitutional

The Federal Court of Canada has released its decision in Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770.

The Court determined that the Safe Third Country Agreement between Canada and the United States violates the s. 7 Charter rights of ineligible refugee claimants because they are returned by Canada Border Services Agency to the United States, where they are detained:

[138]  The Applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the US.  Although the US system has been subject to much debate and criticism, a comparison of the two systems is not the role of this Court, nor is it the role of this Court to pass judgment on the US asylum system.  The narrow focus here is the consequences that flow when a refugee claimant is returned to the US by operation of the STCA.  The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by US officials.  In my view, the risk of detention for the sake of “administrative” compliance with the provisions of the STCA cannot be justified.  Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA.  The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty.

[139]  The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built.

[140]  For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.

The Court did not address whether the STCA infringes s. 15 of the Charter.

The declaration of invalidity of the STCA is suspended for 6 months.

The following questions were certified by the Court:

1) Is the designation of the United States of America as a “safe third country” under paragraph 159.3 of the Immigration and Refugee Protection Regulations ultra vires [of] the Immigration and Refugee Protection Act?

2) Does the combined effect of section 101(1)(e) of the Immigration and Refugee Protection Act and paragraph 159.3 of the Immigration and Refugee Protection Regulations result in violation(s) of sections 15(1) and/or 7 of the Charter of Rights and Freedoms, and if so is/are such violation(s) justified under section 1 of the Charter?

Congratulations to everyone involved!

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