In a recent case, Canada Council for Refugees v. Canada[1], the Federal Court of Canada decided that section 101 of the Immigration and Refugee Protection Act (IRPA) and section 159.3 of the Immigration and Refugee Protection Regulations (the Regulations) – incorporating the Safe Third Country Agreement (STCA or the Agreement) into domestic law, designating the United States (US) as a “safe third country,” violate Article 7 of the Canadian Charter of Rights and Freedoms (the Charter), being the “right to life, liberty and security”. These legal provisions are therefore of no force pursuant to section 52 of the Constitution Act 1982. Justice Anne Marie McDonald has left Parliament with six months to respond to the judgment. 

THE SAFE THIRD COUNTRY AGREEMENT

The Agreement, signed in December 2002, came into effect in December 2004. The crux of the agreement is Article 4(1), which provides that: 

“Subject to paragraphs 2 and 3, the Party of 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 on or after the effective date of this Agreement and makes a refugee status claim.”

That is, an asylum seeker arriving at a port of entry along the Canada-US border will be obliged to seek protection in the first country of arrival. It is only refugee claimants who seek entry to Canada from the US at a Canada-US border crossing that will be reflected to the US, or vice versa. 

There are four exceptions to this: 

1. a family exception: Article 4(2);

2. an unaccompanied minor exception: Article 4(2);

3. a VISA exception: Article 4(2); and

4. a public interest exception (Article 6).

in which case the refugee claimant can apply for asylum in the country of arrival. 

The STCA is given effect in domestic law by section 101(1)(e) of the IRPA and section 159.3 of the Regulations, which in 2004 designated the US as a “safe third country.” 

The Agreement is based on the premise that the US is safe for refugees. In a way, the Agreement allows Canada to circumvent its international obligations, since it may turn away these individuals seeking protection as they are not yet on Canadian territory. However, this is only if they are absolutely certain that the US respects refugees’ fundamental rights. If the US fail to do so, Canada will be indirectly responsible for violating the refugees’ rights. It is against this background that the recent landmark decision arose. 

THE FEDERAL COURT’S DECISION

The applicants – the Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches, as well as a number of affected asylum seekers – challenged the laws and regulations implementing the STCA into domestic law on two grounds: 

1. the legislation implementing the Agreement is ultra vires, or lies beyond the Canadian government’s authority since Canada failed its duty to review the ongoing designation of the US as a “safe third country” as required by sections 102(2) and 102(3) of the IRPA; and 

2. the legislation implementing the STCA is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms. 

Justice Anne-Marie McDonald rejected the first ground. She did, however, find a violation of Article 7 of the Charter, without further considering a potential Article 15 violation.  

In order for an Article 7 violation to be proven, two elements need to be present. The claimants must demonstrate: 

1.  that the challenged law deprives her or him of the right to life, liberty or security; and

2. that the deprivation is not in accordance with principles of fundamental justice.

Justice McDonald found that the right to security had been violated, since, taking into account the risk of refoulement for one of the claimants was real, had she been detained in the US, and the “physical and psychological suffering because of detention,” the security of the person had been negatively affected.[2] Furthermore, there existed “sufficient causal connection” between the suffering and the STCA ineligibility finding, as Canadian Border Service Agency Officials were directly involved in the handing over of claimants to US officials.[3]

This deprivation was also grossly disproportionate to its legislative objective – the “sharing of responsibility” – not having provided the necessary guarantee of “access to a fair refugee process.”[4] Hence it was not “in accordance with principles of fundamental justice” and could also not be justified on the basis of Article 1 of the Charter. 

Therefore, the Federal Court of Canada found that Article 7 of the Charter had been violated, noting also that the treatment of this narrow category of refugee claimants arriving from the US at a land port of entry  as compared to others is “hard to reconcile.”[5]

HUMAN RIGHTS’ CONCERNS WITH THE US ASYLUM SYSTEM

This landmark decision is not the first of its kind in Canada. In 2007, the Federal Court of Canada[6] decided that the STCA violates Articles 7 and 15 of the Charter, although that decision was later overturned by the Court of Appeal[7]; without however reversing the human rights’ aspect of the earlier decision. 

The US is known to resort to automatic detention contrary to Article 31(2) of the Refugee Convention. In 2001, asylum seekers from Haiti were affected. In 2003, it was “asylum applicants from nations where al-Quaeda, al-Quaeda sympathisers, and other terrorist groups are known to have operated (…) for the duration of their processing period” – detention ranged from several months to years. Furthermore, since the Trump administration introduced the Border Enhancement Order, individuals can be detained “on suspicion” of violating federal or state law, which includes unauthorised entry. 

In addition, expedited removal procedures permit front-line immigration officials to render an unreviewable decision, issuing a removal order banning asylum seekers for up to five years from the US. Individuals in these procedures may make an asylum claim only if they can prove to have “credible fear of prosecution”; otherwise they will be refouled without the opportunity to present fully their refugee claim, contrary to the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

It is not uncommon for US immigration officials to charge newly arrived asylum seekers with the criminal offence of entering the country with false documents, contrary to Article 31(1) of the Refugee Convention.

The situation has become untenable since the Trump administration entered office. This landmark decision is therefore barely a surprise, since in the current UN Secretary-General António Guterres’ words, the US asylum system is “diverg[ing] from international standards.”

The decision is however a significant step towards greater respect for, and protection of, the human rights of refugees. It is to be hoped that Canada accepts this strong condemnation, which – once more – highlights its indirect violation of international law and human rights. It is also hopefully a warning to the US, highlighting its own inhumane treatment of refugee claimants, putting future administrations under political pressure to issue progressive reforms, and initiating positive change in the pursuit of greater respect for the human rights of the most vulnerable members of modern society. 

[1] Canada Council for Refugees v. Canada, 2020 FC 770 

[2] Ibid, [114]

[3] Ibid, [101]

[4] Ibid, [128]

[5] Ibid, [148]

[6] Canadian Council for Refugees v. Canada, 2007 FC 1262 [2008] 3 FCR 606

[7] Canadian Council for Refugees v. Canada, 2008 FCA 229 [2009] 3 FCR 136

Luca is a student at King's College London, studying English Law & Spanish Law. He is currently a mooting officer at the KCL Bar & Mooting Society and a copy-editor at the King's Student Law Review. His research interests include public law, public international law and (international) human rights law. 

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