“Saved by the Valve:” Refugees and Concerns with the Safe Third Country Agreement

by Daniel Legris · October 30, 2023

In Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17 [CCR], the Supreme Court of Canada (the “Court” or “SCC”) unanimously confirmed the designation of the United States (“U.S.”) as a “safe third country” and appropriate partner with which Canada can share responsibility for considering refugee claims. The Court also took time to make several clarifications and comments surrounding Canadian Charter of Rights and Freedoms (“Charter”) claims, and should serve as a touchstone for s. 7 challenges against interrelated legislative regimes for years to come.

Statutory and Regulatory Context

Canada and the U.S. are parties to a bilateral treaty, the Safe Third Country Agreement (the “treaty”), that aims to enhance the parties’ sharing of responsibility for considering refugee claims (CCR, para 1). Article 4(1) sets out the treaty’s animating principle: “the country of last presence shall examine, in accordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port of entry” (CCR, para 37). Therefore, as a general rule, refugee claimants must seek protection in the country they first enter after leaving their country of origin (CCR, para 1).

In Canada, the treaty is given domestic effect through the Immigration and Refugee Protection Act (“IRPA”), and its corresponding Immigration and Refugee Protection Regulations (“IRPR”). Section 101(1)(e) of the IRPA is a general ineligibility rule that implements the treaty’s core principle. It provides that (emphasis added):

101 (1) A claim is ineligible to be referred to the Refugee Protection Division if

…

(e) the claimant came directly or indirectly to Canada from a country designated by the regulations, other than a country of their nationality or their former habitual residence…

Several provisions in the IRPA and IRPR affect the application of this general ineligibility rule, including (1) designation and review mechanisms; (2) limits to the scope of the general rule; and (3) exemptions (CCR, para 37). The latter two function essentially function as legislative safety valves; tailored provisions for surviving constitutional scrutiny concerning the problems associated with refugee claimants’ ineligibility and removal from Canada. In the context of s. 7 Charter claims alleging a deprivation of the right to life, liberty, or the security of the person, limits to the scope of the general rule aim to prevent a breach before it happens when certain criteria apply, while the legislative scheme’s discretionary exemptions are designed to ensure compliance with the principles of fundamental justice (PFJs) (CCR, para 10).

With respect to designation and review mechanisms, s. 101(1) (a) of the IRPA provides that only countries that are compliant with the non-refoulement obligations under Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture are eligible for designation by the regulations (CCR, para 38). The non-refoulement obligations under international law prohibit a State from directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment (CCR, para 2). Sections 101(2) and (3) of the IRPA provide a mechanism for ensuring the continued review of a designated country’s compliance with its non-refoulement obligations (CCR, paras 39-40). The U.S. is a designated country under s. 159.3 of the IRPR, and it is the only designated country in Canadian law (CCR, para 40).

Various provisions in the IRPR narrow the application of the general ineligibility rule by ensuring that not all refugee claimants arriving from the U.S. are returned there. For example, s. 101(1)(e) ineligibility applies only to the claims of individuals who arrive at land ports of entry (IRPR, s. 159.4). Some other specific exceptions include those to facilitate family reunification (s. 159.5(a) to (d)) and for unaccompanied minors (s. 159.5(e)) (CCR, para 41). Finally, the regulations include an exception reflecting Canada’s discretion, preserved under Article 6 of the treaty, to consider “any refugee status claims” when doing so is in its public interest (CCR, para 42; also see paras 36, 153 and 162). Other exceptions exist: see sections 159.5(f)-(h) and 159.6 of IRPR and paragraphs 41-42 of CCR for more.

The IRPA contains several mechanisms for temporary or permanent exemptions from return to the U.S. under the general ineligibility rule. For example, officers may grant an administrative deferral from the enforcement of a removal order (IRPA, s. 48(2)), or they may grant a temporary resident permit (s. 24) (CCR, paras 44-45). Additionally, while returnees are not eligible for a pre‑removal risk assessment before their removal from Canada and there is no administrative appeal body set out in the IRPA for them, they may file for judicial review at the Federal Court and judges may grant stays of removal while such proceedings are ongoing (CCR, para 43). Other carve outs exist: see sections 24(3), 25.1(1), 25.2(1), and 233 of IRPA, and paragraphs 44-48 of CCR for additional details.

Facts

The appellants are a mix of individual refugee claimants and public interest litigants. Each of the individual appellants arrived at land ports of entry from the U.S. to claim refugee protection in Canada. Applying s. 101(1) (e) of the IRPA and s. 159.3 of the IRPR, their claims were deemed ineligible for referral to the Refugee Protection Division for review (CCR, paras 14-15). The appellants claimed that returning refugee claimants in their situation back to the U.S. exposes them to significant harm. The appellants highlighted two main harms: (1) the risk of detention given the harsh conditions of American detention facilities; and (2) the risk of refoulement that arises from both detention and American asylum policies (CCR, paras 16-19; also see paras 85-86, 93 and 97).

Thus, the appellants challenged the constitutionality of s. 159.3 of the IRPR on three bases. First, they claimed that s. 159.3 was ultra vires (‘beyond the powers’) because of post-promulgation constraints on the Governor in Council’s statutory authority to maintain a designation (CCR, para 49). Second, they argued that the risks that returnees to the U.S. are exposed to infringe their s. 7 Charter rights (CCR, para 85). Finally, the appellants argued that women fearing gender-based persecution were adversely affected by s. 159.3 of the IRPR because the U.S. interpretation of “particular social group”, one of the classes protected from refoulement, was overly restrictive with respect to women (CCR, para 173).

Judicial History

Federal Court (2020 FC 770)

At trial, the claimants argued that s. 159.3 of the IRPR was unconstitutional on the basis that the designation of the U.S. as a safe third country was ultra vires the authority granted by the IPRA. They also argued that s. 159.3 of the IRPR and s. 101(1) (e) of the IRPA violated ss. 7 and 15 of the Charter.

McDonald J. rejected the vires argument because an earlier case – Canadian Council for Refugees v Canada, 2008 FCA 229 [FC] – held that whether a regulation is within the authority delegated by a statute is assessed based on facts at the time of promulgation (CCR, paras 20-21).

However, she found unjustified breaches of the claimants’ s. 7 rights to liberty and security of the person (“SOP”) (CCR, para 20). The right to liberty was infringed because under Canada’s legislative scheme, “ineligible [Safe Third Country Agreement] claimants are … immediately and automatically imprisoned by US authorities” (FC, para 103; CCR, para 23). Additionally, the right to SOP was infringed: (1) based on findings of a real risk of one appellant being refouled from the U.S. due to “the challenges in advancing an asylum clai[m] for those detained”, such as barriers to accessing legal advice (FC, para 106; CCR, para 23), and (2) because being subjected to some detention conditions flowed directly from Canada’s conduct of returning claimants to the U.S. (CCR, para 23). According to McDonald J., these breaches violated the PFJs, as certain safeguards available to protect against overbreadth and gross disproportionality were “illusory” and could not be saved under s. 1 of the Charter (FC, paras 129-130; CCR, paras 24-25).

Thus, McDonald J. declared s. 101(1)(e) of the IRPA and s. 159.3 of the IRPR of no force or effect and suspended the declaration for six months (CCR, paras 20 and 25). She did not rule on the s. 15 claims.

Federal Court of Appeal (2021 FCA 72)

Stratas J.A., writing for a unanimous Federal Court of Appeal (FCA), allowed Canada’s appeal, dismissed the claimants cross-appeal on the s. 15 claim and the ultra vires argument, set aside the judgment of the Federal Court, and dismissed the applications for judicial review (CCR, para 26). The FCA declined to adjudicate the s. 15 claim and remitted the issue to trial (CCR, para 29).

Stratas J.A. allowed Canada’s appeal on the s. 7 issue based on the finding that the claim was improperly constituted because: (1) provisions in an interrelated legislative scheme cannot be considered in isolation from the legislative whole, and (2) administrative action or inaction must be challenged when it is the source of a Charter violation, not the legislation (CCR, para 27). Nonetheless, the FCA considered the s. 7 claim and decided that the trial judge erred in her findings that returnees are automatically detained and that the scheme’s legislative safety valves were illusory, as well as her analysis of U.S. detention conditions and of the PFJs (FCA, paras 138-140, 144, 146, and 161; CCR, para 28).

Issues On Appeal

Is s. 159.3 of the IRPR ultra vires?
Does s. 159.3 of the IRPR unjustifiably breach s. 7 of the Charter?
Should the s. 15 Charter claim be remitted to trial or decided based on the appeal record?

Decision

Writing for a unanimous court, Kasirer J. answered the first and second questions on appeal in the negative and decided to remit the s. 15 claim to the Federal Court for trial.

Section 159.3 of the IRPR is Intra Vires

The appellants advanced two arguments on the jurisdiction issue.

First, they argued that maintaining the U.S.’ designation was unreasonable because refugees cannot access effective protections there (CCR, para 49). Kasirer J. rejected this argument, pointing to the appellants’ misapprehension of the s. 102 of the IRPA‘s limitations. Sections 102(1) (a) and (2) codified “conditions precedent” for a country to be designated and subsequently promulgated in s. 159.3 (CCR, para 52). The relevant date for determining a country’s compliance with those conditions is the date of its promulgation as a designated country (CCR, para 52). Since the appellants focused their argument on post-promulgation developments (i.e., events relevant to the maintenance/continuance of the U.S.’ designation), this aspect of the claim failed (CCR, para, 54).

Second, they argued that the Governor in Council failed to carry out their statutory obligations under s. 102(3) of the IRPA to continuously review U.S. compliance with the refugee protection standards listed in s. 102(2) of the IRPA (CCR, para 49). Rejecting this argument, Kasirer J. explained that, while the continuous compliance reviews conducted pursuant to s. 102(3) of the IRPA “may be challenged based on administrative law principles” in a judicial review, such reviews are outside the scope of a vires challenge, because “these reviews are not directed at whether the regulation exceeds the limits imposed by the statute”(CCR, paras 50-53). The appellants did not seek judicial review of particular s. 102(3) reviews, so this aspect of the claim also failed (CCR, para 53).

Section 7 was Violated … but in Accordance with the PFJs

After laying out the test for a s. 7 violation (CCR, para 56), the Court found that both lower courts made errors with respect to this issue.

Legislative Safety Valves & Constituting the Section 7 Claim

The Court found that the appellants’ s. 7 claim was properly constituted. The appellants were not required to target legislative safety valves in constituting their s. 7 arguments, nor were they obliged to target individual administrative conduct, as the FCA had suggested (CCR, para 79).

In reaching this determination, Kasirer J. began by emphasizing that in a Charter claim challenging a generally applied law, “[p]rovisions in a complex interrelated scheme should not be viewed in isolation” since “[t]he success or failure of a Charter claim may turn on arguments or evidence related to preventative or curative provisions” (CCR, paras 62-63). Curative and preventative provisions (i.e. legislative safety valves) that form “part of an integrated legislative whole” must be “reviewed” and “accounted for” in determining whether a violation really exists (CCR, paras 63-64).

Nevertheless, the Court clarified that a properly constituted Charter challenge does not need to target legislative safety valves “when the provision of general application to which they relate is a cause of the alleged mischief” (CCR, para 69). In such cases, it is the reviewing court’s responsibility to review the entire statutory context, including legislative safety valves, irrespective of how claimants choose to structure their s. 7 Charter challenges (CCR, para 69). Indeed, legislative safety valves may be relevant to and can be considered by a reviewing court at various points in the s. 7 analysis (CCR, para 70-71). Here, Kasirer J. found it most appropriate to address them in considering the impugned law’s accordance with the PFJs (CCR, para 73).

Lastly, the Court highlighted that the mere existence of alternative avenues for challenging the constitutionality of the legislative scheme – such as challenging administrative actions, like s. 102(3) reviews – did not insulate s. 159.3 of the IRPR from a Charter challenge, nor did it preclude the appellants from challenging the law itself (CCR, paras 80 and 82).

Thus, in the Court’s view, the appellants’ s. 7 challenge of s. 159.3 of the IRPR was properly constituted.

The Rights to Liberty and Security of the Person were Infringed

Kasirer J. found that the risks of detention, the harsh conditions of detention upon return to the U.S. highlighted by the claimants, the risk of refoulement, and the U.S.’ approach to gender-based claims all engaged their liberty and SOP interests (CCR, paras 89-93; para 108).

To illustrate that a sufficient causal connection existed between Canadian state action and the potential deprivation of the s. 7 interests engaged, the appellants had to show that: (1) Canada’s participation was a necessary precondition of the harmful effects alleged, and (2) that these risks were foreseeable consequences (CCR, para 111). Foreseeability requires actual or constructive knowledge of the risks of potential harms (CCR, para 114).

The causal connection was clear in this case. The Safe Third Country Agreement, enforced through IRPA and IRPR, requires Canada to send claimants back to the U.S., where they face harmful effects. Without the treaty and the impugned legislation, “… individuals could advance their refugee protection claims in Canada” (CCR, para 112). Thus, Canada’s participation was a necessary precondition to the harmful effects alleged.

Turning to the foreseeability requirement, Kasirer J. first found that McDonald J. erred by insufficiently explaining her findings that the relevant effects were foreseeable. In the Court’s view, the record did not support a finding that most of the harms raised by the claimants as arising in U.S. detention facilities were foreseeable consequences of Canada’s actions (CCR, paras 115-116).

However, the record did substantiate the foreseeability of some negative effects. These foreseeable consequences included the fact that returnees were exposed to the risk of detention, the “widespread practice of medical isolation” in U.S. detention centres, the “one-year bar” (a rule under which asylum claims must be advanced within a year of a claimant’s arrival) and the treatment of gender-based claims upon return to the U.S. (CCR, para 117).

Thus, Kasirer J. found a sufficient causal connection – Canada’s legislative regime (IRPA and IRPR) that implemented the treaty had caused infringements of the rights to liberty and SOP (CCR, para 117).

The Infringements Accorded with the PFJs / were Saved by Legislative Safety Valves

Kasirer J. identified the applicable PFJs as overbreadth and gross disproportionality. As described in Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford], the principle of overbreadth requires asking whether the impugned legislation “is so broad in scope that it includes some conduct that bears no relation to its purpose” (Bedford, para 112 [emphasis in original]; CCR, para 141). Gross disproportionality, meanwhile, requires asking whether the effect(s) of a deprivation of s. 7 is so out of sync with the law’s purpose that it cannot be rationally supported (Bedford, para 120; CCR, para 147).

It is well established that when assessing whether legislation violates the PFJs, courts consider “whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose” (CCR, para 127). Courts then assess whether the legislation breaches any applicable PFJs in light of that legislative purpose (CCR, para 127). Kasirer J. applied the guiding principles from R v Ndhlovu, 2022 SCC 38, for characterizing legislative purpose in a s. 7 analysis and examined several pieces of intrinsic and extrinsic evidence related to s. 159.3 of the IRPR to ascertain the provision’s purpose (CCR, para 129-139). He found that the legislative purpose was “to share responsibility for fairly considering refugee claims with the United States, in accordance with the principle of non-refoulement” (CCR, paras 128 and 139). Against this backdrop, the Court unanimously agreed that the s. 7 claims failed, either because any infringement of the rights to liberty or to the SOP accorded with the PFJs; or, if not, any constitutional defects were cured by the legislative safety valves (CCR, paras 147, 152 and 163).

Neither the risk of detention nor medical isolation met the high threshold for overbreadth or gross disproportionality (CCR, paras 140 and 147). Starting with the former, Kasirer J. reasoned that the risk of detention in the U.S., with opportunities for release and review, was related to the legislative objective of sharing responsibility for refugee claims. While the responsibility-sharing purpose exposes refugee claimants to the risk of detention, there is no violation because they are given “… fair consideration in the designated country” (CCR, para 142). Indeed, in the Court’s view, the record showed that returnees’ risk of detention in the U.S. was tempered by “mechanisms that create opportunities for release and provide for review by administrative decision makers and courts” (CCR, para 143). Since nothing in the evidentiary record supported the conclusion that the American asylum system was “fundamentally unfair” and deprived of safeguards, the risk of detention was not overbroad (CCR, paras 142-143).

Nor was the use of medical isolation fundamentally unfair (CCR, para 144). In this case, the claimants that were medically isolated in U.S. detention facilities were awaiting tuberculosis test results. Kasirer J. highlighted Rule 30(d) of the United Nations’ Nelson Mandela Rules, which requires that prisoners with contagious diseases be clinically isolated and provided with adequate treatment (CCR, para 144). Absent any evidence suggesting that U.S. authorities’ utilisation of medical isolation in this case was improper or unnecessary to control public health risks (CCR, para 146), or that it was for punitive purposes (CCR, para 145), returnees’ risk of medical isolation in U.S. detention facilities was not an overbroad effect of Canada’s legislative regime (CCR, para 146).

Kasirer J. also found that the risks of detention and medical isolation were not grossly disproportionate, as “these risks are within the mutually held norms accepted by our free and democratic societies” (CCR, para 147).

Moreover, with respect to the risks of refoulement due to U.S. asylum policies, Kasirer J. resolved that while this risk might otherwise occasion a deprivation of returnees’ s. 7 Charter rights in a manner that is contrary to the PFJs of overbreadth and gross disproportionality, any such effects were guarded against or cured by the legislative safety valves in the IRPA (CCR, paras 148 and 155). Especially relevant here were the safety values in the IPRA providing for administrative deferrals of removal, temporary resident permits, humanitarian and compassionate exemptions, and policy exemptions (CCR, paras 148 and 155). It was further explained that any ‘real and not speculative risks’ could be reconciled by the power preserved under Article 6 of the treaty and exercising the broad legislative discretion to consider any refugee claim if it is in the public interest (CCR, paras 152-153). Kasirer J. emphasized the sweeping curative power under Article 6, which could even be applied to “individuals who would not normally be eligible under an exception but who nevertheless warrant special consideration because of their vulnerability” (CCR, para 156; also see para 162).

Kasirer J. rejected the appellants’ argument that these legislative safety valves were “illusory”, and found that the trial judge erred by not substantively assessing the relevant curative mechanisms that could have limited the breaches of s. 7 rights, such that they did not violate the PFJs (CCR, paras 158 and 160). Considering the foregoing, the Court unanimously concluded that even if refugee claimants faced a real risk of refoulement from the U.S., Canada’s legislative implementation of the treaty — and in particular s. 159.3 — was neither overbroad nor grossly disproportionate and therefore accorded with the PFJs (CCR, para 163).

Section 1 Analysis

Since the Court found that the violations of the right to liberty and SOP were in accordance with the PFJs, Kasirer J. did not engage in a s. 1 justification analysis. The Court also declined to speculate on the outcome of a s. 1 analysis if the PFJs had in fact been violated (CCR, paras 165-171).

Section 15 Issue

Kasirer J. declined to exercise its fact-finding powers and remitted the s. 15 challenge back to trial (CCR, para 175).

For an analysis of this decision, please see the second installment of this post here.

Editor: Farah Abdel Haleem