Federal Court Declares the STCA Unconstitutional

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In July, the Federal Court released a long-awaited decision on the constitutionality of the Safe Third Country Agreement (“STCA”). Although the Federal Court (“FC”) found the STCA to be unconstitutional, the Canadian government has already filed an appeal to the Federal Court of Appeal (“FCA”), meaning that a final verdict on whether the STCA violates the Canadian Charter of Rights and Freedoms [Charter] may be years away.

What is the STCA?

Enacted through s. 101(1)(e) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], the STCA is an agreement between the governments of Canada and the United States (“US”) which limits the ability of refugees to claim asylum at the Canada-US border. Because the United States is designated as a “safe third country,” refugees who arrive at official land Ports of Entry from the US are deemed ineligible for refugee protection in Canada, as they ought to have taken refuge in the first “safe” country they arrived in. However, the STCA does not apply to all refugee claimants travelling from the United States—it does not apply to those who travel by air or sea, or who cross the land border between official Ports of Entry. There are also certain exceptions to the STCA, including for unaccompanied minors and those with certain family members in Canada.


Previous Constitutional Challenge

The STCA has already withstood Charter scrutiny once before. Several public interest groups challenged the STCA’s constitutionality in 2005, culminating in a FCA decision in 2008 which upheld the STCA (Canada v Canada (Council for Refugees), 2008 FCA 229 [Canada v CCR (2008)]). The FCA decision was largely made on the basis of standing, with the court finding that the public interest groups did not have standing to bring a Charter challenge against the STCA (Canada v CCR (2008), paras 103-104). The Supreme Court denied leave to appeal the FCA’s decision. As such, for the past 12 years, the STCA has been valid law, and asylum seekers have been routinely turned back at the US-Canada border because of it.  


In the current case, public interest organizations brought a challenge to the STCA alongside several individuals who had sought refuge in Canada but had been turned away due to the STCA, overcoming the past problems with standing. Since the previous challenge concluded in 2008, the political and legal landscape of the US has changed drastically, particularly for refugee claimants. Under the Trump administration, already limited protections for asylum seekers have been cut back even further. For example, in 2018, the Office of the Attorney General determined that absent exceptional circumstances, refugee claims based on gang or domestic violence would no longer merit protection in the US except in exceptional circumstances (Matter of A-B-, 27 I&N Dec. 316 (A.G. 2018). Accordingly, the recent challenge to the STCA relied on recent evidence of the treatment of asylum seekers in the US—and particularly, the documented practice of routinely detaining those seeking asylum.  


Current Constitutional Challenge

In the current challenge to the STCA (Canadian Council for Refugees v Canada (Immigration, Refugees, and Citizenship), 2020 FC 770 [CCR v Canada]), the Applicants advanced two constitutional arguments. First, they submitted that the legislation enacting the STCA is ultra vires as the Canadian government “failed in its duty to review the ongoing designation of the US as a “safe third country” (CCR v Canada, para 9). Second, they argued that the legislation implementing the STCA contravenes sections 7 and 15 of the Charter. While the FC rejected the Applicants’ first argument, it accepted the second, finding the STCA to be an unjustified violation of s. 7 of the Charter in light of the documented practice and conditions of immigration detention in the US.


This analysis will focus solely on the FC’s treatment of the s. 7 claim. While the Applicants advanced a range of arguments to demonstrate the infringements of life, liberty, and security of the person that asylum seekers experience due to the STCA, the FC’s decision fixated specifically on one component of their evidence: the regular detention of returned asylum seekers in the US after they were deemed ineligible to enter Canada to make a refugee claim. In doing so, the FC largely sidestepped the broader criticisms of the US asylum system raised by the Applicants, though still offered pointed remarks about the punitive nature of US immigration detention.


Section 7 Engagement

In determining whether section 7 was engaged by the STCA, the FC first noted that because all of the Applicants had been physically present in Canada, each had the right to advance a Charter claim, and those who had been returned to the United States were not barred from advancing such a claim (CCR v Canada, para 87).


Next, the FC considered whether the Applicants’ rights to life, liberty, and security of the person were engaged by the STCA, asking “if the actions of Canadian officials in returning ineligible STCA claimants to US authorities, where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests” (CCR v Canada, para 94). The FC primarily relied on evidence of one Applicant, Ms. Mustefa, who detailed her experience of being held in immigration detention for one month after her return to the US, including one week in solitary confinement (CCR v Canada, para 95). While imprisonment clearly deprives liberty, the deprivation of liberty came at the hands of American, rather than Canadian, officials. However, the FC concluded that the detention was a direct result of the actions of Canadian officials, even though it was carried out by American authorities, so there was a sufficient connection to find a s. 7 infringement (CCR v Canada, para 103).


In analyzing whether the STCA engaged security of the person interests, the FC similarly focused on the experiences of those in immigration detention, including inadequate medical attention and legal representation, the “freezing cold” environment, the cruel treatment of detainees, and the lack of basic communication with family members (CCR v Canada, paras 96, 110-112). Further, the FC noted that applicants faced a “real and not speculative” risk of refoulement—return to the country in which they alleged persecution—that would arise upon being detained in the US and having limited, if any, access to the documentation and legal representation needed to file an asylum claim (CCR v Canada, para 106). Based on the appellants’ evidence of physical and psychological suffering, the FC concluded that security of the person interests were engaged and were sufficiently connected to “the actions of Canadian officials in returning claimants to the US where they are imprisoned” (CCR v Canada, para 113).  However, it is worth noting that the FC explicitly clarified that “it is the impact of detention and not the current state of the US asylum law which raises security of the person interests” (CCR v Canada, para 113).


Infringement of Principles of Fundamental Justice

After finding that s. 7 interests were engaged by the STCA, the next step of a s. 7 analysis is for the Court to determine whether such an infringement is “in accordance with the principles of fundamental justice.” The FC focused on two principles of fundamental justice: overbreadth and gross disproportionality. Analyzing each of these principles requires identifying the purpose of the legislation. Here, the FC pointed to the preamble of the STCA and the previous FCA decision to conclude that the STCA’s purpose is to facilitate the “sharing of responsibility” of processing refugee claims (CCR v Canada, paras 119-122).


After establishing this purpose, the FC first considered whether the STCA was overbroad—whether it “goes too far and interferes with conduct that bears no connection to the objective of the law” (CCR v Canada, para 123). Again focusing specifically on the imprisonment of attempted border-crossers once returned to the US, the FC found that “the STCA legislation is overbroad as the deprivation of the liberty rights of STCA returnees (their detention in the US) has no connection to the ‘mischief contemplated by the legislature (sharing responsibility for refugees with a country that complies with the Conventions)” (CCR v Canada, para 131).


Next, the FC assessed whether the STCA was grossly disproportionate—whether the “deprivation of liberty is completely out of sync with the purpose of the STCA” (CCR v Canada, para 124). The FC noted that based on the evidence of Ms. Mustefa and others, STCA returnees “are detained without regard to their circumstances, moral blameworthiness, or their actions” (CCR v Canada, para 135). The FC wrote:

While responsibility sharing may be a worthwhile goal, this goal must be balanced against the impact it has on the lives of those who attempt to make refugee claims in Canada and are returned to the US in the name of ‘administrative efficiency.’ In my view, imprisonment cannot be justified for the sake of, and in the name of, administrative efficiency (CCR v Canada, para 135).

Consequently, the FC concluded that the detention of returned asylum seekers, and resultant infringements of liberty and security, are grossly disproportionate to the purpose of the STCA.


Finally, in the conclusion of the section 7 analysis, the FC offered perhaps its most interesting—and revealing—paragraph of the decision. The paragraph began by stating that “[a]lthough 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” (CCR v Canada, para 138). However, Justice MacDonald then focused specifically on the rights infringements that arise through the detention of asylum seekers, offering a subtle but powerful critique of both the US asylum system and the Canadian immigration and refugee systems that allow these practices to continue:

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. 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 (CCR v Canada, para 138).


Section 1 Justification

After finding an infringement of s. 7, the FC briefly considered whether the infringement was saved by s. 1. Although possible, infringements of s. 7 are very rarely justified under s. 1, a pattern which continued through this decision. In this case, the FC held that the infringement of refugee claimants’ rights was not minimally impairing. The government had argued that the STCA was necessary in order to maintain the sustainability of the Canadian refugee system; however, the FC found that this proposition was only supported by weak evidence and was inconsistent with Canada’s past flexibility in adjusting to fluctuating numbers of refugee claimants (CCR v Canada, para 147). Given the severity of the infringement and the narrow category of refugee claimants who would be impacted by the overturning of the STCA, the FC concluded that there was “no principled reason” to find the infringement justified under s. 1 (CCR v Canada, para 147).


Conclusion & Appeal

After finding the provisions of the IRPA enacting the STCA to be a violation of s. 7 of the Charter, the FC suspended its declaration of invalidity for six months to give the government sufficient time to respond (CCR v Canada, para 162). Shortly after the FC’s decision, however, the Canadian government announced that it had filed an appeal to the FCA based on “factual and legal errors” in the FC’s decision. Refugee advocacy organizations, members of the opposition, and other members of the public have criticized the government’s choice to appeal the decision and have encouraged the government to respect the FC’s decision and immediately end the return of refugee claimants to the United States.


Legal & Public Significance

 Legally, the Federal Court’s decision is significant in that it bucks a longstanding trend of Canadian courts denying s. 7 claims brought in the refugee law context. The Supreme Court has a history of assessing s. 7 differently in refugee and immigration law compared to other areas of law. For example, usually liberty interests under s. 7 encompass the right to make decisions about “fundamentally or inherently personal” matters which go “to the core of what it means to enjoy individual dignity and independence” (Godbout v Longueuil (City) at para 66). However, in the refugee and immigration law context, the SCC has repeatedly held that deportation alone does not engage s. 7 (Charkaoui v Canada (Citizenship and Immigration), 2007 SCC 9), even though the choice about where to live and whether to return to a potentially unfamiliar or dangerous country is clearly an inherently personal choice implicating individual dignity and independence. Given this backdrop, the FC’s decision upholding prospective refugee claimants’ rights under s. 7 is notable and—if viewed optimistically—may indicate a shift in how the rights of refugee claimants and other non-citizens are treated judicially.


However, arguably more important than its legal significance is the impact that overturning the STCA will have for prospective refugee claimants attempting to enter Canada from the US. Though the FC largely refused to engage with arguments about the deficiencies of the asylum system in the US, the parties advanced a considerable body of evidence demonstrating ways in which the US system fails to offer refugee claimants sufficient protection. As mentioned previously, the US takes a restricted interpretation of several elements of the refugee definition, including largely preventing those seeking refuge from gang persecution or gender-based violence from qualifying as members of a “particular social group” (Matter of A-B-). Further, parties like the Canadian Council for Refugees pointed to procedural barriers in the US system, including a requirement for refugee claimants to make their claim within one year of arrival—a requirement which, because of limited information and access to legal resources, many refugee claimants are not able to meet. If it withstands scrutiny on appeal, the overturning of the STCA means that refugee claimants who first arrived in the US will be able to access Canada’s refugee determination system and the increased procedural fairness it affords.


Ultimately, continuing to uphold a system that regularly results in refugee claimants being placed in immigration detention in the US is unconscionable in light of the evidence that has continued to emerge about the treatment of detainees in American immigration detention facilities. Over the last few weeks, accusations have emerged of forced sterilization of women held in immigration detention in the US. Even before these new allegations, though, the evidence of several applicants in this decision already demonstrated the reprehensible treatment of detained refugee claimants, including solitary confinement, inadequate health care, limited personal hygiene, severely cold temperatures, and cruel treatment from guards (CCR v Canada, paras 110-112). Continuing the operation of the STCA under these circumstances—and thus actively facilitating the return of refugee claimants to these conditions— is effectively an endorsement of this cruel and inhumane treatment of refugees and immigrants, and, as Justice MacDonald rightly stated, is tantamount to imposing punishment for the simple act of seeking refuge from persecution. 


Featured image is found here.

Alison Imrie

Ali Imrie is a part-time JD student currently in her fourth year at Osgoode Hall Law School, and is one of the Managing Editors of TheCourt.ca. She is an aspiring refugee lawyer with a passion for constitutional law and human rights. At Osgoode, she is a Senior Executive of Fair Change Community Services, a student-run legal clinic representing street-involved clients who have received tickets under the Provincial Offences Act and fighting against the criminalization of poverty. She also founded and continues to run the Disability Collective of Osgoode, a student collective run for and by students with disabilities.

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