The Curious Case of Section 15 and Courts of First Instance: The Joint Asper Centre, LEAF and West Coast LEAF Intervention in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al

Posted on June 15, 2022June 15, 2022 by Student

by Caitlin Salvino

In the Fall of 2022, the Supreme Court of Canada (SCC) will hear the case Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.[1] The David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund (West Coast LEAF), and Women’s Legal Education and Action Fund (LEAF) have been jointly granted intervener status.[2] Their joint intervention focuses on the treatment of claims under section 15 of the Canadian Charter of Rights and Freedoms (Charter) by courts of first instance.

The Safe Third Country Agreement with the United States

In Canada, an individual can apply for refugee status at an official Port of Entry or at an Immigration, Refugees and Citizenship Canada office. To qualify for refugee status the claimant must either: (1) have a well-founded fear of persecution or (2) are at risk of torture, or cruel or unusual punishment in their home countries.[3]

In Canada, the federal government has restricted Port of Entry asylum claims through the Safe Third Country Agreement (STCA) with the United States (US). The STCA bars refugee claimants that arrive at the Canadian border from the US, unless they meet a narrow category of exceptions.[4] The STCA expects refugees to make an asylum claim in the first safe country they enter, in this case the US. The Canadian government maintains that countries will only be recognised as a “safe third country” if they respect human rights and offer a high degree of protection to refugee claimants.[5] The Immigration and Refugee Protection Act (IRPA) requires the Government of Canada to continuously review the STCA with the US to ensure that it meets four conditions listed in the IRPA.[6] The STCA with the US has been criticised by refugee and human rights organisations, based on increasing evidence of mistreatment of refugee claimants in the US.[7]

Challenging the Constitutionality of the Safe Third Country Agreement

In 2017, the STCA was jointly challenged by refugee claimants barred under the STCA, together with the Canadian Council of Refugees, Amnesty International and the Canadian Council of Churches. In addition to arguing that provisions of the STCA were ultra vires, the Applicants argued that the combined effect of sections 101(1)(e) of IRPA and 159.3 of the Immigration and Refugee Protection Regulations unjustifiably infringed sections 7 and 15 of the Charter.[8]

Under section 7, the Applicants argued that many asylum seekers rejected under the STCA are automatically imprisoned upon their return to the US as a form of punishment depriving the claimants of their section 7 rights to liberty and security of the person.[9] With respect to section 15, the Applicants argued that the STCA with the US has a disproportionate impact on female-identifying refugee claimants. This claim was supported by evidence of a narrower interpretation of gender persecution asylum claims in the US[10] and a one-year bar on all refugee claims in the US.[11] The one-year ban on refugee claims requires an individual to seek asylum within one year of experiencing persecution – a restriction that poses a barrier for women and 2SLGBTQQIA[12] individuals who experience gender persecution that involve unique forms of trauma that often result in delayed reporting.[13]

The Applicants succeeded at the Federal Court in 2020. The Federal Court declared that the provisions[14] enacting the STCA unjustifiably infringed section 7 of the Charter.[15] The Federal Court held that the STCA was intra vires federal authority and declined to address the arguments put forward on section 15 of the Charter.[16] As a remedy for the section 7 violation, the impugned provisions were declared to have no force or effect and the declaration of invalidity was suspended for six months.[17]

The Federal Court ruling was overturned by the Federal Court of Appeal in 2021.[18] The Federal Court of Appeal agreed with the lower court that the STCA is intra vires the federal authority[19] but disagreed with the findings with respect to section 7 of the Charter.[20] The Federal Court of Appeal, held that the two impugned provisions, which recognise the US as a safe third country, do not cause the harms being challenged under the Charter.[21] Instead, the Federal Court of Appeal held that section 102(3) of IRPA, which includes the criteria for safe third country designation, should have been challenged under judicial review in relation to the alleged harms under the Charter.[22] Regardless of the appropriate approach, the Federal Court of Appeal disagreed with the lower court’s factual findings on section 7, which the Federal Court of Appeal deemed insufficient and unrepresentative of the experiences of refugee claimants on the whole.[23] On section 15, the Federal Court of Appeal agreed with the Federal Court’s approach to judicial restraint and also declined to address the claim based on equality rights.[24]

Joint Asper Centre, LEAF and West Coast LEAF Intervention

In Canada, there is a growing recognition of the relevance of gender-related persecution in refugee asylum claims. Although it is not yet recognised as an independent ground to establish fear of persecution, if claimed, gender-related persecution must be assessed by the Refugee Division panel considering the claim.[25] The assessment of gender-related persecution claims requires an examination of the link between gender persecution and the enumerated grounds in the Refugee Convention.[26]

The Applicants argued that the STCA violated both sections 7 and 15 of the Charter. Under section 15, the Applicants argued that the STCA disproportionately impacts female-identifying refugees[27] and provide an extensive evidentiary record of gender discrimination under the STCA. After determining that provisions of the STCA unjustifiably infringed section 7 of the Charter the Federal Court declined to address the section 15 claim.[28] In doing so, the Federal Court made no factual findings on the evidence of gender-based discrimination within the STCA legal regime. The Federal Court’s disregard of the section 15 claim was upheld by the Federal Court of Appeal who determined that lower courts are not required to consider all Charter claims because section 15 “does not enjoy ‘superior status in a hierarchy of rights’”.[29]

The joint Asper Centre, West Coast LEAF and LEAF intervention for the upcoming SCC hearing focuses on the Federal Court’s decision to not consider and make factual findings on all Charter issues raised that are supported by an extensive evidentiary record. The joint interveners argue that the Federal Court should have decided the section 15 claim and the refusal to consider the section 15 claim inappropriately applied the doctrine of judicial restraint.[30]

The joint interveners support their position with three arguments. First, a purposive interpretation of the Charter as a whole requires a ruling on all Charter claims raised with an extensive evidentiary record. The Federal Court’s decision to decline considering the section 15 issue altered the subsequent justificatory analysis of section 1 and the appropriate remedy.[31] Second, the lower court erred in its application of the principle of judicial restraint, which does not permit a court to favour one Charter claim over another.[32] This flawed interpretation of the principle of judicial restraint has the practical implication of creating a hierarchy of Charter rights, within which section 15 is relegated to the bottom.[33] Third, the Federal Court’s failure to address the section 15 claim minimises the issue of gender-based violence and historic disadvantage experienced by women and 2SLGBTQQIA individuals.[34]

Looking Ahead

The SCC hearings in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. will be heard in Fall 2022.[35] The joint intervention by the Asper Centre, West Coast LEAF and LEAF argues that this case represents a unique opportunity for Canada’s highest court to send a directive to lower courts regarding the treatment of court cases with multiple Charter claims. This guidance on the treatment of multiple Charter claims in a single case is particularly relevant to equality rights under section 15 – a Charter provision that has been historically dismissed[36] and has experienced uncertainty based on its “continual reinvention” in the jurisprudence.[37]

The Asper Centre, West Coast LEAF and LEAF filed their joint intervention factum on June 15, 2022 and it can be read here.

Caitlin Salvino is a JD Candidate at the Faculty of Law and is the Asper Centre’s 2022 summer Research Assistant.

[1] ^{The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. is October 3, 2022.}

[2] ^{Canada (Citizenship and Immigration) v Canadian Council for Refugees,}^{2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759.}

[3]^{Immigration, Refugees and Citizenship Canada, “How Canada’s refugee system works”, (27 November 2019), online: Government of Canada}^{https://www.canada.ca/en/immigration-refugees-citizenship/services/refugees/canada-role.html}^.

[4]^{Immigration, Refugees and Citizenship Canada, “Canada-U.S. Safe Third Country Agreement”, (23 July 2020), online: Government of Canada}^{https://www.canada.ca/en/immigration-refugees-citizenship/corporate/mandate/policies-operational-instructions-agreements/agreements/safe-third-country-agreement.html}^.

[5] ^{Overview of the Canada–United States Safe Third Country Agreement Background Paper}^{, 4, by Madalina Chesoi & Robert Mason, 4 2020-70-E (Library of Parliament, 2021) at 1–2.}

[6] ^{The four conditions that are evaluated in each review are: (1) if they are a party to the Refugee Convention and Convention Against Torture; (2) its policies and practices are in line with those two international treaties; (3) its human rights record and (4) whether they are party to an STCA agreement with Canada. See}^{Immigration, Refugees and Citizenship Canada, supra note 3.}

[7]^{“US as a Safe Third Country Infographic”, (June 2017), online: Canadian Council for Refugees <https://ccrweb.ca/en/us-safe-third-country-infographic>; Contesting the Designation of the US as a Safe Third Country, by Amnesty International & Canadian Council for Refugees (2017); “Refugees entering from US and Safe Third Country: FAQ”, (February 2017), online: Canadian Council for Refugees https://ccrweb.ca/en/refugees-entering-us-and-safe-third-country-faq.}

[8]^{Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, at paras 82–83 [Canadian Council for Refugees FC].}

[9]^Ibid.

[10]^{Ibid at para 151.}

[11]^{Ibid at para 153.}

[12]^{The acronym 2SLGBTQQIA refers to Two-Spirit, lesbian, gay, bisexual, transgender, queer, questioning, intersex and asexual.}

[13]^{Canadian Council for Refugees FC, supra note 8 at para 153.}

[14]^{Immigration and Refugee Protection Act, SC 2001, c 27, s 101(1)(e), 159.3.}

[15]^{Canadian Council for Refugees FC, supra note 8 at para 162.}

[16]^{Ibid at paras 151–154.}

[17]^{Ibid at para 163.}

[18]^{Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, at para 179 [Canadian Council for Refugees FCA 2021].}

[19]^{Ibid at para 179.}

[20]^{Ibid at paras 132–168.}

[21]^{Ibid at paras 46–47.}

[22]^{Ibid at paras 92–93.}

[23]^{Ibid at paras 132–168.}

[24] ^Ibid^{at paras 169–174.}

[25]^{Immigration and Refugee Board of Canada, Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecution, online:}^{https://irb.gc.ca/en/legal-policy/policies/Pages/GuideDir04.aspx}^.

[26]^{The enumerated grounds under the Refugee Convention are having a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion. See UN General Assembly, Convention Relating to the Status of Refugees, 28 July 1951, United Nations, Treaty Series, vol. 189, p. 137, 1951.}

[27]^{Canadian Council for Refugees FC, supra note 8 at para 151.}

[28] ^{Ibid at para 154.}

[29]^{Canadian Council for Refugees FCA 2021, supra note 19 at para 172 citing Gosselin, supra note 25 at para 26.}

[30]^{Canada (Citizenship and Immigration) v Canadian Council for Refugees, 2021 FCA 72, leave to appeal to SCC granted, 2021 CanLII 129759 (Factum of Joint Interveners Asper Centre, West Coast LEAF and LEAF, at para 3).}

[31]^{Ibid at para 4.}

[32]^{Ibid at para 18.}

[33] ^Ibid^{at para 4.}

[34] ^Ibid^{at para 26.}

[35] ^{The date of the SCC hearings for Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al.is October 3, 2022.}

[36]^{Bruce Ryder & Taufiq Hashmani, “Managing Charter Equality Rights: The Supreme Court of Canada’s Disposition of Leave to Appeal Applications in Section 15 Cases, 1989-2010” (2010) 51 SCLR 505; Jonnette Watson Hamilton & Jennifer Koshan, “Adverse Impact: The Supreme Court’s Approach to Adverse Effects Discrimination under Section 15 of the Charter” (2014) 19 Rev Const Stud 191.}

[37]^{Jennifer Koshan & Jonnette Watson Hamilton, “The Continual Reinvention of Section 15 of the Charter” (2013) 64 UNBLJ 19.}

“Hey, hey! Ho, ho! Safe Third has got to go! Hey, hey! Ho, ho! Safe Third has got to go!”

Posted on November 7, 2019May 7, 2020 by Tal Schreier

by Karen Chen, Shelby Rooney and Anju Xing

Dozens gathered in front of the Federal Court in Toronto this Monday, Nov. 4 to chant along in support of a legal challenge against the United States’ designation as a “safe country” under the Safe Third Country Agreement (STCA). A challenge years in the making, Asper Centre students in the Immigration and Refugee Law working group worked to support the applicants’ legal team by providing research and advocating in the media for the Agreement to be set aside.

The STCA is an agreement between the United States and Canada that requires refugee claimants request refugee protection in the first safe country they arrive in. The power to designate safe third countries resides in section 102 of the Immigration and Refugee Protection Act (IRPA). Factors to be considered when determining a country’s designation include its compliance with the United Nations Refugee Convention and the United Nations Convention Against Torture, as well as its human rights record.

The Canadian government is required to “ensure the continuing review” of the above factors for each “safe” country. This monitoring framework enables Immigration, Refugees and Citizenship Canada to identify changes in policies and practices that would considerably weaken the level of human rights and refugee protection that the country designated as safe provides.

In December 2004, Canada declared the United States a “safe third country”. It is the only country to receive such a designation under the Agreement. Practically, the agreement precludes asylum seekers from seeking refugee protection in Canada if they have come from or previously landed in the United States.

Given political and policy shifts in the United States since the election of President Donald Trump and even before 2016, many refugee advocates argue it is no longer a safe third country. For example, the United States currently limits asylum for women fleeing from domestic violence to only very exceptional cases. It also prosecutes asylum-seekers who enter the country from points other than official ports of entry, contrary to international law.[1] Moreover, evidence shows that many people – including children – are being arbitrarily detained in immigration detention centres, in poor conditions and with little or no access to legal counsel.[2] This deprives asylum seekers from the ability to have a fair hearing. Thus, the Agreement should no longer preclude asylum seekers who come from the United States from applying for refugee protection in Canada.

In 2007, a previous challenge to the STCA by three organizations– the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches –was upheld at the Federal Court. However, this decision was overturned at the Federal Court of Appeal in 2008 on the grounds that in designating the US a “safe third country”, the Immigration and Refugee Protection Act only required the Canadian government to consider the factors listed in the Act; it did not require actual compliance with the UN Refugee Convention.

The current challenge to the STCA is being brought by three individual litigants and the three public interest organizations that brought the original challenge. They argue that the United States’ “safe third country” designation violates refugee rights under international law as well as section 15 and 7 rights guaranteed under the Canadian Charter of Rights and Freedoms. They also argue that the provision allowing the exemption ought to be struck down as ultra vires under administrative law.

Students from the Asper Centre’s Immigration and Refugee Law Working Group in 2018-2019 had the fantastic opportunity to hear from Erin Simpson, one of nine lawyers working on the legal challenge to the STCA. Simpson spoke to the students about the current situation in the United States, the status of the case, and what further information would be needed. This meeting prepared the students to research and prepare reports that were used for cross-examination in the case.

The work by students last year built on the research work of students in the 2017-2018 Asper Centre Immigration and Refugee Law Working Group which also helped Simpson with research in the development of certain arguments now being heard.

Throughout, students at the Faculty of Law’s Downtown Legal Services clinic in the Refugee and Immigration Division worked under the guidance of lawyer Prasanna Balasundaram to support the challenge by preparing memoranda on section 7 of the Charter, preparing for cross-examination, listening in on strategy meetings with the litigation team, keeping the files organized, and perhaps most importantly, supporting the individual litigant “ABC” and her family with issues arising in their day-to-day lives.

Challenges like this one depend on so many people coming together to fight for the rights-respecting, international law and Charter-compliant Canada we want. To have these arguments heard in Federal Court this week, it required the courage of the individual applicants whose lives were affected by the STCA, the hard work and dedication of the legal team and organizations advocating for the applicants, as well as the research and support of law students in the Asper Centre working groups and Downtown Legal Services clinic. As students, we were honoured to have contributed what we could and to have learned so much from being involved in this incredibly important work – work that many of us hope to continue to do and support for the rest of our careers.

[1] Canadian Council for Refugees, “Why we are challenging the USA as a “safe third country” in the Federal Court of Canada” (December 2017) at 1, online (pdf): Canadian Council for Refugees <ccrweb.ca/sites/ccrweb.ca/files/stca-contesting-overview.pdf>.

[2] Ibid

Karen Chen is a 3L JD Candidate at the Faculty of Law. She was a leader of the Asper Centre Refugee & Immigration Law working group in 2018-2019, and also worked in the Downtown Legal Services clinic.

Shelby Rooney is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

Anju Xing is a 2L JD Candidate at the Faculty of Law. She was a member of the Asper Centre Refugee & Immigration Law working group in 2018-2019.

Asper Centre students call for Canada to suspend STCA on Refugee Rights Day

Posted on April 5, 2019May 7, 2020 by Tal Schreier

via @UTLaw: https://www.law.utoronto.ca/news/students-call-on-canada

Thursday, April 4, 2019

Image of Canadian border sign

By Karen Chen and Mackenzie Claggett

Canada presents itself to the world as a place where “those fleeing persecution, terror and war” are welcome. It is a reputation that Prime Minister Justin Trudeau touted on Twitter following the decision in the U.S. to institute a travel ban against several Muslim-majority countries and refugees. It is a reputation the Supreme Court affirmed when it released its Singhdecision 34 years ago on this day, April 4, finding that the constitutional right to life, liberty and security of a person extends to those seeking refuge in this country. It is a reputation we must uphold.

As law students engaged in refugee advocacy at the University of Toronto’s Asper Centre for Constitutional Rights, on this Refugee Rights Day, we call on the government to suspend or terminate the Safe Third Country Agreement (STCA).

Under the agreement, asylum seekers who attempt to enter Canada from the United States at border ports of entry are turned away and forced to seek protection under the American system.

This means that while Canada’s internal laws and policies may reflect our commitment to refugee rights, we are complicit with America’s asylum system under the Trump administration.

This will be especially true if the government decides to expand the agreement to cover all asylum-seekers to Canada, who were previously in the U.S. It was reported this week that Canada and the US have moved towards doing so.

By continuing the STCA, the Canadian government forces asylum seekers to choose ever more dangerous and clandestine routes of entry.

On Refugee Rights Day, let us remember the choices Canada has made as a country that respects the rights of those fleeing violence. After 157,000 displaced persons immigrated to Canada following the Second World War, Canada signed the 1951 Refugee Convention to recognize its willingness to take in refugees. In the 1980s, Canada developed a world-renowned private-sponsorship program to assist thousands of Vietnamese, Cambodian, and Laotian refugees find secure settlement. Over the past decade, Canadians have aided more than 40,000 Syrian refugees with this program. This past December, the Canadian government signed the United Nations Global Compact for Safe, Orderly, and Regular Migration. The compact provides a non-binding framework for governments to develop human-rights based migration policies, including objectives to reducing vulnerabilities in migration, strengthening certainty in migration procedures, and empowering migrants to achieve social cohesion.

Being part of the STCA means American refugee policy becomes Canadian policy. When the STCA came into effect in 2004, the underlying rationale was that both countries offer “generous systems of refugee protection” and therefore are safe for asylum seekers.

Much has changed since then.

Since the start of the Trump Administration, there is ample evidence to suggest that “safe” is a mischaracterization of the American asylum system. The family separation policy is one example of this. In November 2018, the Trump administration attempted to deny refugee protection to all claimants who did not enter the United States through a formal port of entry. This rule contradicts Article 31 of the Refugee Convention which imposes an obligation that countries not punish asylum seekers for the manner in which they enter the country. While two Guatemalan children died in immigration custody, the Trump administration announced in December 2018 it would force asylum seekers at the southern American border to remain in Mexico until their court hearing. The result has been a humanitarian crisis that puts the health and safety of asylum seekers at risk due to the lack of support services available to provide housing, medical care, and other necessities. By February 2019, President Trump used this government-manufactured crisis as the basis for declaring a “national emergency” to secure additional funds and build a barrier on the southern border.

Although we recognize the benefit of international cooperation when it comes to processing asylum seekers, such benefit no longer exists if our cooperation is with a country that does not adhere to international refugee law or the ideals Canada espouses with respect to refugee rights. The Canadian government must recognize the harm the STCA is currently imposing on asylum seekers and act accordingly.

Karen Chen is a second-year student at the Faculty of Law where she leads the Asper Centre’s Refugee and Immigration Law student working group. She is also a member of the Canadian Association of Refugee Lawyers.

Mackenzie Claggett is a first-year student at the Faculty of Law and is a member of the Asper Centre’s Refugee and Immigration Law student working group.