This case concerns the constitutionality of the Safe Third Country Agreement, and the equality rights of women fleeing gender-based violence and persecution.

LEAF, in partnership with West Coast LEAF and the David Asper Centre for Constitutional Rights, sought leave to intervene before the Federal Court of Appeal.

LEAF, West Coast LEAF, and the Asper Centre intervened before the Supreme Court of Canada. The Court reserved its decision.

Facts

This case is a challenge to the constitutionality of the Safe Third Country Agreement (the STCA). The STCA effectively closes the Canadian border to refugee claimants seeking to enter from the United States by a land port of entry, even if they were only transiting through the U.S. on their way to Canada. As the name suggests, the STCA is premised on the notion that the U.S. is a safe country for refugees. 

At trial, the applicants (the group of organizations and individuals who challenged the STCA) brought forward evidence that the STCA violates the right to liberty and security of the person – section 7 of the Charter – because once refugee claimants are sent back to the U.S., they are imprisoned in often deplorable conditions. The judge agreed that this evidence showed a violation of section 7 of the Charter. On appeal, the Federal Court of Appeal disagreed with the applications judge and decided that the applicants’ arguments failed to show that the STCA regime is unconstitutional. 

The applicants also brought forward significant evidence that women are particularly disadvantaged by the STCA, in violation of section 15 of the Charter, because their claims of gender-based persecution  are more likely to be denied in the U.S. than in Canada. Women with gender-based persecution claims – claims that are typically related to family or domestic violence, or acts of sexual violence – are inadequately protected by the U.S. refugee claims system. However, the judge decided that because she had found that the STCA violates section 7 of the Charter, she did not need to rule on the equality rights claim.  The Federal Court of Appeal agreed with this.

Arguments

LEAF, West Coast LEAF, and the Asper Centre are arguing that the judge’s choice not to decide the equality rights claim is a serious access to justice issue. The applicants devoted significant resources to put forward their best case respecting the section 15 claim, only to see the court ignore it. As a result, there is no resolution of the question of whether the STCA discriminates against women refugee claimants. 

The decision of the judge not to decide the equality rights claim is not unique: it is part of a longstanding pattern of courts neglecting equality rights claims. When claimants raise multiple rights violations, section 15 is often dismissed and treated as avoidable, incidental, or less important. We argue that this must stop. When section 15 claims are fully argued in court and there is sufficient evidence, judges should consider the arguments and decide the issue.  

Outcome

The Federal Court of Appeal

LEAF, West Coast LEAF, and the Asper Centre filed an application seeking leave to intervene at the Federal Court of Appeal in December 2020. On January 27, 2021, the Federal Court of Appeal dismissed the motion for leave to intervene. The Court also dismissed the applications of all five other proposed interveners.

LEAF is grateful to Lobat Sadrehashemi and Cheryl Milne, counsel in this case before the Federal Court of Appeal. 

LEAF’s arguments are informed and supported by a case committee composed of academics and practitioners with expertise in relevant issues. LEAF gratefully acknowledges their contributions to the arguments in this factum.

The committee members for this intervention before the Federal Court of Appeal were (in alphabetical order): Mary Eberts, Jennifer Koshan, Jamie Liew, and Margot Young. 

Download the Federal Court of Appeal motion for leave to intervene here.

Read the Federal Court of Appeal decision here.

The Supreme Court of Canada

The Supreme Court heard this case in October 2022. On June 26, 2023, the Supreme Court of Canada agreed with the Asper Centre, LEAF and West Coast LEAF that there must not be a hierarchy of Charter rights in which equality rights occupy a lower tier.

The Supreme Court unanimously upheld the STCA regime as constitutional under section 7 of the Charter. However, the Court allowed the appeal in part and ordered the challenge to section 15, based on the harms to women fearing gender-based persecution, to be sent back to the Federal Court for determination.

The case will now be sent back to the Federal Court to hear full evidence of gender-based harm for a determination of the section 15 claim.

LEAF is grateful to Cheryl Milne and Jamie Liew, counsel in this case before the Supreme Court of Canada. 

The committee members for this intervention before the Supreme Court of Canada were (in alphabetical order): Coline Bellefleur, Mary Eberts, Jennifer Koshan, and Margot Young. 

Download LEAF, West Coast LEAF, and the Asper Centre’s Supreme Court of Canada factum here.