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CANADIAN CHARTER OF RIGHTS AND FREEDOMS — Life, liberty and security of person

Monday, August 24, 2020 @ 9:22 AM  


Applications by several refugee claimants for judicial review of the dismissal of their refugee claims on the basis that they were ineligible under the Safe Third Country Agreement (STCA) between the U.S. and Canada to seek protection in Canada since they arrived from the U.S. at a land Port of Entry. The applicants argued the immigration legislation and regulations implementing the Agreement were unconstitutional. The Safe Third Country Agreement deemed those who arrived at a Canada land Port of Entry from the U.S. ineligible to make a refugee claim in Canada. The applicants argued that by returning ineligible refugee claimants to the U.S., Canada exposed them to risks in the form of detention, refoulement and other violations of their rights contrary to the Refugee Convention and the Convention Against Torture. They argued that the Canadian government failed in its duty to review the ongoing designation of the U.S. as a safe third country and therefore the legislation and regulations that made the Agreement law were ultra vires. The applicants argued that the ongoing designation of the U.S. as a safe third country was inconsistent with the statutory purpose and the statutory grant of power. Furthermore, the statutory conditions precedent for the ongoing designation of the U.S. as a safe third country were not satisfied. The applicants also argued that the legislation implementing the Agreement was contrary to ss. 7 and 15 of the Canadian Charter of Rights and Freedoms (Charter).

HELD: Applications allowed. The legislation enacting the SCTA was ultra vires. The issue of whether s. 159.3 of the Immigration and Refugee Protection Regulations was ultra vires the Act had already been determined and there were no grounds to depart from binding authority. The court accepted that the actions of Canadian authorities in enforcing the Agreement resulted in ineligible claimants being automatically imprisoned by U.S. authorities. The use of solitary confinement and the general conditions of detention were also factors that raised security of the person interests. Imprisonment and the attendant consequences were inconsistent with the spirit and objective of the Agreement and were a violation of the rights guaranteed by s. 7 of the Charter. The sharing of responsibility objective of the Agreement should entail some guarantee of access to a fair refugee process. The Agreement legislation was overbroad as the deprivation of the liberty rights of Agreement returnees had no connection to the mischief contemplated by the legislature, the sharing responsibility for refugees with a country that complied with the Conventions. The risks of detention and loss of security of the person, which were facilitated by the Agreement, were grossly disproportional to the administrative benefits of the Agreement, which was intended to help Canada and the U.S. share responsibility for refugees in a way that complied with the Refugee Convention. The respondents failed to meet the s. 1 Charter justification burden, as the rights of refugee claimants were more than minimally impaired by the Agreement and the deleterious effects, detention and threats to security of the person, were not proportional to the salutary effects of administrative efficiency.

Canadian Council for Refugees v. Canada (Minister of Immigration, Refugees and Citizenship), [2020] F.C.J. No. 795, Federal Court, A.M. McDonald J., July 22, 2020. Digest No. TLD-August242020001