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, is seeking leave to intervene before the Federal Court of Appeal.
This case, on appeal from the Federal Court Trial Division, 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.
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.
LEAF, West Coast LEAF, and the Asper Centre intend to highlight three problems that arise from declining to determine the equality claim. First, by ignoring the section 15 claim in its entirety, the Court has provided a limited view of the nature and magnitude of the harms arising from the STCA, which in turn limits the analysis of how to address the harms. Second, the trial judge minimized the impact of gender-based violence on the applicants and failed to consider the pre-existing disadvantage experienced by women survivors of violence.
Finally, 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.
LEAF, West Coast LEAF, and the Asper Centre filed an application seeking leave to intervene in this case 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.
Despite our inability to intervene in the upcoming appeal of the STCA challenge, LEAF, West Coast LEAF, and the Asper Centre remain committed to advocating for the rights of refugees fleeing gender-based persecution.
LEAF, West Coast LEAF, and the Asper Centre would like to thank Lobat Sadrehashemi and Cheryl Milne for their work as pro bono counsel.
Download the motion for leave to intervene here.
LEAF’s interventions are guided, informed and supported by a case committee composed of academics and practitioners with expertise in the relevant issues. The case committee members for this intervention are (in alphabetical order): Mary Eberts, Jennifer Koshan, Jamie Liew, and Margot Young.
The staff members working on this intervention are: Megan Stephens and Cee Strauss for LEAF; Raji Mangat, Kate Feeney, and Whitney Vicente for West Coast LEAF; and Cheryl Milne for the Asper Centre.