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Status for All! Federal Court Invalidates Immigration Legislation Designating U.S. Safe Third Country
However, the Federal Court Justice suspended the declaration of invalidity for a period of six months, "to allow time for Parliament to respond." In Canada, the Safe Third Country Agreement (STCA) operates by deeming most foreign nationals who arrive at a Canadian land port of entry (POE) ineligible to make a refugee claim in Canada. Section 7 of the Charter stipulates that "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice." The Applicants' Legal ChallengeThe Applicants in the case are citizens of El Salvador, Ethiopia and Syria, the Canadian Council for Refugees (CCR), Amnesty International (AI) and the Canadian Council of Churches (CCC). Their challenge was brought against the Minister of Immigration, Refugees and Citizenship and the Minister of Public Safety and Emergency Preparedness. The Applicants challenged the validity and the constitutionality of the legislation implementing the STCA, alleging that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks in the form of detention, refoulement (the forcible return of refugees or asylum seekers to a country where they are liable to be subjected to persecution), and other violations of their rights, in contravention of the 1951 Refugee Convention and the United Nations Convention Against Torture. They also argued a "causal connection" between Canada's adherence to the STCA and the deprivation of section 7 rights and submitted that liberty and security of the person interests are engaged because of the penalization of asylum seekers by U.S. authorities. Aside from asylum seekers being deprived of liberty by detention, the applicants also noted that being detained often results in a lack of basic human dignity, lack of medical care, and lack of food. Detention also "impedes the ability to retain and instruct legal counsel and increases the risk of refoulement," they wrote. The Respondents' ArgumentsCounsel for the federal government argued that even though Section 7 of the Charter may be infringed upon, safeguards and discretionary remedies exist in the IRPA. They also pointed to the option of seeking judicial review of CBSA decisions. Additionally, they argued that the Canadian Charter of Rights and Freedoms (Charter) does not apply to U.S. law or the actions of U.S. authorities. With regard to fundamental justice, the Ministers' legal team countered that the issue lies with U.S. authorities and policies and therefore, is outside of Canada's control. In any event, they continued, the IRPA contains protection safeguards, as discretionary remedies are available. As for removals to the U.S., they claimed that the STCA is neither overbroad, nor disproportionate in its application. The final argument of the government was that increasing the number of claimants in Canada would negatively affect the sustainability of the refugee system in Canada. Justice McDonald's FindingsOn the Applicants' challenge that the legislation implementing the STCA is contrary to section 7 and the Charter, Justice McDonald concluded that "the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by U.S. authorities." She further determined that "imprisonment and the attendant consequences are " a violation of the rights guaranteed by section 7 of the Charter." "Section 7 considerations are two-fold," noted Justice McDonald. First, a claimant must demonstrate that the challenged law deprives her or him of the right to life, liberty or security of the person. If so, s. 7 is engaged. Once s. 7 is engaged, the claimant must demonstrate that the deprivation is not in accordance with the principles of fundamental justice ..."
"The issue," Justice McDonald noted, "is if the actions of Canadian officials in returning ineligible STCA claimants to U.S. authorities, where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests. The evidence is clear that the most significant harm suffered is imprisonment. Additionally, there are the related harms regarding the conditions of detention and the heightened risk of refoulement. "Deprivations of s. 7 rights caused by actors other than our own government," she wrote, "are still subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government's participation and the deprivation." She went on to explain that such deprivation is one in which "Canada's participation is a necessary precondition" and "where the deprivation is an entirely foreseeable consequence of Canada's participation." The fact that "STCA returnees are imprisoned by U.S. authorities," she stated, "does not immunize the actions of Canadian officials from consideration." The evidence presented, she wrote, "confirms that CBSA officials inform U.S. officials that STCA claimants are being returned. CBSA officials are involved in the physical handing over of claimants to U.S. officials. This conduct does not make Canada a "passive participant" and it provides a "sufficient connection [...] to the offending conduct." She concluded that such action "facilitates a process that results in detention." In response to the federal government's claim of the existence of safeguards and remedies in the IRPA, Justice McDonald described these as "largely out of reach" and therefore "illusory." The Federal Court Justice also remarked that there is "an important distinction between the removal cases and the facts here," pointing out that "the Applicants have not had the merits or the substance of their refugee protection claims considered in any manner in Canada, nor have they had their risks assessed." They also "did not benefit from any such consideration of their claims for protection."
"The risks of detention and loss of security of the person, which are facilitated by the STCA, are grossly disproportional to the administrative benefits of the STCA" she found. "Responsibility sharing cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions, solitary confinement, and the risk of refoulement." In response to the Ministers' position that a fair detention review process is available, she responded that "suggesting that those who are imprisoned will eventually be released, is not sufficient evidence of minimal impairment." Finally, addressing the government's argument that the sharing of responsibility had been met and that if the STCA were not operative, even greater stress would be placed on the system, Justice McDonald found: "In the past, Canada has demonstrated flexibility to adjust to fluctuations in refugee numbers in response to needs." Having found that the operation of the STCA is a violation of Section 7 Charter rights, I see no principled reason to continue to allow the provisions of the STCA to be applied to this narrow category of refugee claimants, when the evidence is that they will be imprisonied upon return to the U.S." Notes1. Section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) reads: "Ineligibility "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" 2. Section 159.3 of the Immigration and Refugee Protection Regulations (IRPR) reads: "Determination of Eligibility of Claim "Designation -- United States 159.3 The United States is designated under paragraph 102(1)(a) of the Act as a country that complies with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(e) of the Act." (Photos: TML, VOR, Solidarité sans frontières)
This article was published in Article Link:   Website: www.cpcml.ca Email: editor@cpcml.ca |
On July 22,
Federal Court Justice Ann Marie McDonald invalidated the section of
Canada's Immigration and Refugee Protection Act IRPA[
"The principles
of fundamental justice," she continued, " are concerned with
arbitrariness, overbreadth, and gross disproportionality," ... "In
order to properly assess the s. 7 arguments it is important to
understand the process that unfolds under the STCA when a claimant
arrives at a Canadian land POE and claims refugee status."
"Failed
claimants," she asserted, "are detained without regard to their
circumstances, moral blameworthiness, or their actions. They are
detained often without a release on bond and without a meaningful
process for review of their detention. While responsibility sharing may
be a worthwhile goal," she noted, "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 U.S. in the name of
"administrative efficiency." "In my view," she said, "imprisonment
cannot be justified for the sake of, and in the name of, administrative
efficiency.