SCC to Revisit the Safe Third Country Agreement in Canadian Council For Refugees, et al. v Minister of Citizenship and Immigration, et al.
The Supreme Court of Canada (“SCC”) will revisit the applications of several unsuccessful refugee claimants when it hears Canadian Council for Refugees, et al. v Minister of Citizenship and Immigration, et al, SCC 39749. In doing so, they could make a powerful statement about Canada’s perception of the United States (“U.S.”) as a safe country for refugees.
The case concerns a series of individuals who fled persecution in their respective home countries and sought refuge in the U.S. Upon arrival, they encountered numerous political and social obstacles that threatened their safety, including rising animosity towards their ethnic group and the country’s imposition of the so-called “Muslim Ban”. In their quest for safety, these individuals tried to leave the U.S. and seek refugee protection in Canada. Their attempts failed, however, as Canada rejected their applications with the reasoning that the U.S. was “safe” for refugees. The individuals appealed their unsuccessful refugee claims, and the case made its way up Canada’s court system.
On leave to the SCC is the decision in Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72 [Refugees]. The appeal concerns “the constitutional validity of certain legislative provisions that prevent certain refugee claimants from seeking refugee protection in Canada” (Refugees, para 1).
Canada designates certain countries as “safe” for refugees under the Immigration and Refugee Protection Regulations, S.O.R./2002-227 [“the Regulations”]. One of these safe countries is the U.S., which became official in 2004 when Canada and the U.S. entered the “Safe Third Country Agreement,” allowing the two countries to share responsibility for incoming refugees (Refugees, para 10). This means that if a refugee enters Canada from a safe country, they cannot claim refugee protection in Canada (Refugees, para 2). Instead, Canada can reject their refugee claim and return them to the “safe” country they arrived from (Refugees, para 20). The Safe Third Country Agreement is embedded in Canadian legislation though s. 101(1)(e) of the Immigration Protection Act, SC 2001 c 27 [“the Act”], and by s. 159.3 of the Regulations, which deems the U.S. as a safe country.
In Canadian Council for Refugees v Canada (Immigration Refugees and Citizenship), 2020 FC 770 [FC 2020], the refugee claimants (“the Claimants”) were a group of individuals who tried to seek refuge in Canada for fear of persecution in their home country. They were ultimately denied entry, however, pursuant to s. 101(1)(e) of the Act and s. 159.3 of the Regulations, since they arrived to Canada from the “safe country” of the U.S., and therefore could not seek refugee protection in Canada. The Claimants sought judicial review of the ineligibility decisions and submitted that the U.S. as a safe third country, and “the resulting ineligibility of refugee claimants in Canada”, infringed their s. 7 right to life, liberty and security of the person and their s. 15 right to equality under the Canadian Charter of Rights and Freedoms [“Charter”] (Refugees, para 5). You can read more on the FC 2020 decision here.
The Federal Court found that the enforcement of the Safe Third Country Agreement unjustifiably breached s. 7 of the Charter and declared them of no force or effect (Refugees, para 6). After reaching this conclusion, they found it unnecessary to address the s. 15 issue.
On appeal to the Federal Appeal Court (“FCA”), Canada challenged the Federal Court’s finding of an unjustifiable infringement of s.7 (Refugees, para 8).
The Federal Court of Appeal Decision
On behalf of a unanimous court, Justice Stratas granted Canada’s appeal and dismissed the Claimants’ applications for judicial review (Refugees, para 10). They also set aside the Federal Court’s judgment due to an overriding error in their analysis.
The Safe Third Country Agreement is Part of a Legislative Scheme
The FCA held that the Federal Court erroneously addressed the ss. 7 and 15 Charter challenges put before it. To their error, the Federal Court failed to consider the impugned provisions positioning within its larger legislative scheme. In highlighting the Federal Court’s mistake, the FCA first clarified how the Safe Third Country Agreement operates within its larger legislative scheme. Its positioning within this legislative framework dictates how provisions must be interpreted against the Charter.
The Safe Third Country Agreement, an international instrument, is implemented into Canadian law through legislation. Beneath the legislative scheme is an administrative policy that explains how aspects of the scheme should work (Refugees, para 23). Part of this administrative policy includes “continual reviews of the designation of a foreign country under subs. 102(3) of the Act” (Refugees, para 23).
When designating a country as “safe”, the Governor in Council must conclude that the country satisfies four factors under subs. 102(2) of the Act (Refugees, para 26) First, that the country has entered a safe third country agreement; second, whether the country has joined certain international human rights and refugee agreements; third, the country’s “policies and practices” of those agreements; and fourth, their human rights record (Refugees, paras 27-28). Since 2004, the Governor in Council has found that the U.S. satisfies these four factors (Refugees, para 29).
The Governor in Council can also revoke a country’s designation as a safe country if they no longer satisfy the four factors under subs. 102(2) (Refugees, para 30). To ensure that safe countries continue to meet the four factors, Parliament created a monitoring mechanism in subs. 102(3) to review the country’s compliance “on an ongoing basis” (Refugees, para 31). An administrative policy guides subsection 102(3) reviews for the U.S., called the “Monitoring Framework for the U.S. Designation as a Safe Third Country” (Refugees, para 39). The administrative policy states that subs. 102(3) reviews must focus on systemic issues in the U.S. and not isolated incidents (Refugees, para 40).
Justice Stratas further highlighted the importance of the subs. 102(3) reviews to the case at hand. If a country’s designation as “safe” were to ever be questioned, the answer is found not in their original designation, but “in one or more subs. 102(3) reviews conducted up to that time, the failure to conduct reviews, the failure to conduct them properly or the failure to refer matters to the Governor in Council for assessment” (Refugees, para 47).
The Claimants’ Charter Challenges Offend Practical Rules
The FCA emphasized that it was the subs. 102(3) reviews of the U.S. as a “safe country” that should have faced a Charter challenge rather than s. 101(1)(e) of the Act, that deemed the Claimants ineligible. Because the claimants did not challenge this administrative conduct, the FCA concluded that the Claimants’ Charter challenges were not properly constituted and therefore must be dismissed.
The FCA explained that the claimants’ Charter challenges offended two practical rules. The first rule was that “legislative provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged” (Refugees, para 58). In the present case, s. 101(1)(e) of the Act and s. 159.3 of the Regulations cannot be challenged in isolation from the legislative scheme (Refugees, para 70). The Claimants challenged the initial designation of the U.S. as a safe third country which was granted 17 years ago, but the FCA explained that this was not the cause of any Charter infringement. If there were any effects contrary to the Charter, they would have stemmed from the subs. 102(3) reviews and “related administrative conduct that caused the designation to continue” (Refugees, para 70). The Claimants did not challenge this provision to their detriment. The FCA also looked to the SCC decision in Canada (Attorney General) v PHS Community Services Society, 2011 SCC 44 to conclude that a Charter challenge “must be directed to the state action—legislation or administrative conduct—that causes the Charter infringement” (Refugees, para 71). The Claimants’ improper focus of their Charter challenge meant that the evidence on subs. 102(3) reviews was scarce and individualized, making it “problematic for drawing system-wide inferences concerning the situation in the United States” (Refugees, para 78).
The second practical rule that the Claimants’ Charter challenge offended is that “where administrative action or administrative inaction under legislation is the cause of a rights infringement, it, not the legislation, must be challenged” (Refugees, para 58). As Justice Stratas stated, “[t]he alleged constitutional defect in this case stems from how administrators and officials are operating the legislative scheme, not the legislative scheme itself” (Refugees, para 89). The legislative scheme as a whole, when working properly, would protect Charter rights because the government would conduct regular reviews of the U.S. to ensure it remained compliant with the four factors in subs. 102(3) of the Act. Legislation cannot be deemed unconstitutional if there is occasional “maladministration and misapplication” of the legislation by officials (Refugees, para 88). In the present case, the Claimants did not challenge any administrative conduct, which significantly weakened their Charter challenge.
As Justice Stratas explained, “[c]ourts cannot go beyond the challenge and address a different challenge” (Refugees, para 59). Although there may have been a compelling challenge against the administrative actions within the subs. 102(3) reviews of the U.S. as a safe country, this issue was not properly put before the court. The FCA further submitted that the Claimants could have achieved proper recourse elsewhere, including through judicial reviews of their refugee eligibility decisions, or through administrative law relief concerning the subsection 102(3) reviews (Refugees, para 96).
Finally, the FCA disagreed with the Claimants’ contention that the Federal Court was obligated to assess their s. 15 Charter challenge. Justice Stratas explained that courts are empowered to abandon issues that are unnecessary to the outcome of a case (Refugees, para 171). Further, the FCA clarified that s. 15 does not enjoy “superior status in the hierarchy of rights” (Refugees, para 172). For these reasons, a s. 15 analysis was not justified.
A Wrench in U.S.-Canada Relations
While the outcome in Refugees largely concerned procedural matters, an overturning of the FCA’s decision could have significant implications. Most notably, a reversal of the Refugees decision risks fracturing Canada-U.S. relations.
If the SCC finds that the Claimants’ arguments of a Charter breach were properly put before the FCA, it is possible that the U.S.’s designation as a “safe” country for refugees could be revoked. Such a finding would speak to the U.S.’s questionable human rights practices in recent history, including the imposition of race-based travel bans, unethical migrant encampments and growing racial tensions. Revoking their “safe” designation would be a bold statement by the SCC regarding Canada’s stance on providing dignified refugee protection.
However, while I believe there are grounds to conclude that the U.S. is unsafe for refugees, I am skeptical that the SCC will focalize this issue in their decision. The SCC will be crucially aware of what this decision means for Canada’s relationship with the U.S. The two countries have historically enjoyed a strong and sustained alliance, finding commonality in their social, political and cultural practices. More importantly, Canada is extremely reliant on the U.S.’s economy, and their supply chain is crucial to the country’s operations. The SCC cannot overlook these factors when assessing the Claimants’ arguments and questioning the Safe Third Country Agreement with our southern neighbours.
The Importance of Legal Strategy
The decision in Refugees also highlights the ramifications of forming a poor legal strategy. Justice Stratas repeatedly acknowledged that the subs. 102(3) reviews and related administrative conduct could have faced compelling Charter scrutiny, however they were not properly put before the FCA. He also noted that the legal issue before the FCA could have been meaningfully resolved in other forums. The absence of judicial intervention on the quality of subs. 102(3) reviews in this case was a missed opportunity for the Claimants’ counsel. One can hope that the SCC will address this issue in their upcoming decision.