Yesterday, Madam Justice McDonald, of the Federal Court of Canada (FC), released her decision declaring the Safe Third Country Agreement (STCA) between Canada and the US unconstitutional. This means that refugees who cross at land Points of Entry from the US to Canada cannot be returned to the US, where they risk being imprisoned.
This is a very important decision for refugees. The decision acknowledges that refugees who are returned to the US from the Canadian border are subject to unconstitutional violations of their rights. Imprisonment for having an ineligible refugee claim, without being heard, is traumatic and goes against the objective and spirit of the STCA. This acknowledgement is essentially a decision that the US is unsafe for many refugees. This opens the door for refuges to seek asylum in Canada when their safety is threatened in the US. Downtown Legal Services represents Nedira Mustefa, ABC, DE and FG, four of the individual clients in the STCA challenge. We congratulate our clients for their courage and bravery in bringing this challenge.
Overview of Conclusion
The FC found that the STCA is invalid. Specifically, section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) and section 159.3 of the Immigration and Refugee Protection Regulations (Regulations), referred to as the Safe Third Country Agreement (STCA), are unconstitutional. These sections are of no force or effect as they violate s. 7 of the Canadian Charter of Rights and Freedoms (the Charter) and are not saved by s. 1 of the Charter. The Government of Canada has 6 months to address the Court’s concerns.
A family tries to cross the border between Saint Bernard-de-Lacolle, Quebec, and Roxham Road in Champlain, N.Y.. (AP Photo/Charles Krupa)
Summary of the Decision
The Justice introduced the six issues in front of her, the core issues being (1) whether the STCA was outside of the enacting bodies’ jurisdiction (whether the STCA was ultra vires), (2) whether the STCA violates s. 7 of the Charter, if yes, (3) whether it is saved by s. 1, and (4) whether the STCA violates s. 15 of the Charter.
Justice McDonald relies on the Federal Court of Appeal (FCA) decision from 2008 in Canadian Council for Refugees v. Her Majesty the Queen as a full answer to the jurisdictional issue. Justice McDonald agreed with the decision from 2008 that jurisdictional issues cannot be raised on the basis of developing events or facts that occurred after the STCA came into force. Ultimately, Justice McDonald found the legal arguments aimed at the same provisions as determined by the FCA in 2008 have been framed differently but have not changed in substance and she sees no ground to depart from the binding authority of the 2008 decision.
At this point, Justice McDonald began her s. 7 Charter analysis. Her conclusions herein are the landmark change in the law. Justice McDonald found that the STCA provision violates the liberty rights and security of the person interests enshrined in s. 7 of the Charter. Justice McDonald also found the STCA provision overbroad and grossly disproportionate to its legislative objective. She then found this s. 7 violation cannot be saved by s. 1 of the Charter. In other words, the STCA is unconstitutional and invalid law.
In reaching her decision, she relied heavily on the testimonies of DLS clients Nedira Mustefa and ABC to conclude that the inevitable imprisonment and horrendous treatment in the US upon return, as well as the heightened risk of refoulement (return) to dangerous countries of origin, causes significant psychological and physical harms. These harms, which are a direct result of the Canadian decision to return claimants to the US, threaten the applicants’ rights to liberty and security of the person. Justice McDonald found the STCA to be overbroad as the resulting deprivation of liberty has no connection to the legislative objective of “sharing of responsibility”. She then determined the impacts on returned claimants to be grossly disproportional to the administrative benefits of the STCA.
A former border crossing used by refugees walking from the United States to enter Canada at Emerson, Manitoba. (Reuters/Lyle Stafford)
Finally, in finding the violation of s. 7 not to be saved by s. 1 of the Charter, Justice McDonald rejects that there is a pressing and substantial purpose for the STCA, finding it difficult to reconcile why some claimants are turned away at the border and others who fit in STCA exceptions can cross. Minimal impairment is not met, as there is no fair review process and claimants face imprisonment and related consequences upon arrival to the US. Lastly, the deleterious effects of detention and threats to security of the person are not proportional to the salutary effects of administrative efficiency.
Having found a violation of s. 7 rights, Justice McDonald did not deal with the section 15 equality arguments raised by the Applicants. The Applicants argued that changes to US asylum law increase the risk of refoulement of STCA claimants returned to the US who claim discrimination under the category “particular social group”. The Applicants further argued that the one-year bar on claiming asylum in the US disproportionately affects women due to the nature of the claims and the social norms in their countries of origin.
To the final issue on the Respondents’ argument that Ms. Mustefa did not have “clean hands”, Justice McDonald is clear: “I do not find that she intended to deceive the CBSA Officer or that she engaged in serious misconduct. Furthermore, there was no finding of misconduct on the part of the CBSA. Accordingly, I accept her evidence.” Either way, Justice McDonald allowed Ms. Mustefa’s judicial review application on the basis of the violation of s. 7 of the Charter.
This decision comes after years of legal advocacy and uncertainty for the individual litigants and all those impacted by the STCA. The Federal Court previously ruled in 2007 that the STCA was unconstitutional, based on gaping deficiencies in the US asylum system. Now, having taken into account the indisputable evidence of our clients’ lived experiences, Justice McDonald’s decision provides a clear reaffirmation that the US is not a safe country and Canada returning claimants to the US violates their human and Charter-protected rights.
Read the Full Decision
Prasanna Balasundaram, Staff Lawyer Refugee and Immigration Division, firstname.lastname@example.org, 647-210-0176
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Footnote (Preliminary Issues):
Justice McDonald’s began the decision by addressing two preliminary issues. She first affirmed her decision from the February 21, 2019 motion to accept the expert evidence of Deborah Anker and Karen Musalo. Anker and Musalo’s personal views and external advocacy were found not to affect their ability to give expert evidence in these cases. Justice McDonald then denied the request for the late addition of new procedural fairness arguments raised on behalf of Nedira Mustefa. She determined it unfair to the Respondents and not in the interest of justice to allow the request.