On December 8, 2020, LEAF, West Coast LEAF, and the David Asper Centre for Constitutional Rights filed a joint application seeking leave to intervene in Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) at the Federal Court of Appeal.
Better known as the Safe Third Country Agreement challenge, this case concerns the constitutionality of the Safe Third Country Agreement (the STCA). The effect of the STCA is that people who arrive in Canada from the U.S. by land through a designated port of entry are ineligible to make a refugee claim in Canada, and are sent back to the U.S.
The Federal Court judge found the STCA to be unconstitutional because it violates the right to liberty and security of the person under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”). However, she decided not to rule on whether the STCA discriminates against women under section 15 of the Charter.
If granted leave to intervene at the Federal Court of Appeal, LEAF, West Coast LEAF, and the Asper Centre will argue that when Charter litigants spend significant time and dollars to enforce their constitutionally protected equality rights, and when the court agrees that a serious constitutional question has been raised, that court must make a ruling on the equality rights claim. These are real people with real experiences of discrimination who deserve access to justice – and our laws will be made better by recognizing when such laws violate equality rights.
This case, on appeal from the Federal Court Trial Division, is a challenge to the constitutionality of the Safe Third Country Agreement. 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. Unfortunately, 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 government is now appealing the trial judge’s decision, arguing that the STCA is constitutional. This is extremely disappointing. We, along with many others, wish to see an immediate end to refugee claimants being deemed inadmissible at Canadian borders simply because they came through the United States. However, now that the Federal Court decision is being appealed, LEAF, West Coast LEAF, & the Asper Centre are seeking to ensure that in the future, courts do not do what the trial judge did in this case. Courts must decide section 15 equality rights claims when they are fully presented.
LEAF, West Coast LEAF & the Asper Centre’s interest in the appeal
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.
For all of these reasons, when rights claimants fully argue an equality rights claim in court and present a significant body of evidence, that claim should be decided.
“The Federal Court of Appeal’s decision will have a significant impact on access to justice and the rule of law,” says Megan Stephens, Executive Director and General Counsel of LEAF. “It will affect equality rights generally, and the equality rights of women fleeing gender-based violence and persecution in particular.”
“By failing to address the section 15 claim, the Court ignored the circumstances of women refugee claimants, who already face many barriers to enforcing their constitutionally protected rights,” says Kate Feeney, Director of Litigation at West Coast LEAF. “In so doing, the court has created a risk that Canada’s refugee system will continue to discriminate against women fleeing gender-based violence.”
“Assembling this type of record is time-consuming and expensive, particularly for claimants with few resources,” says Cheryl Milne, Executive Director of the Asper Centre and pro bono counsel in in this proposed intervention. “Further ignoring this record and the section 15 claim risks leaving the issue of whether women asylum seekers are disproportionately impacted by the STCA Regime unresolved. This raises concerns about fundamental fairness, access to justice, and the rule of law.”
Read LEAF, West Coast LEAF, and the Asper Centre’s application seeking leave to intervene here.
Case committee and counsel
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.
LEAF, West Coast LEAF, and the Asper Centre would like to thank Lobat Sadrehashemi and Cheryl Milne for their work as pro bono counsel.
About Women’s Legal Education and Action Fund (LEAF):
The Women’s Legal Education and Action Fund (LEAF) works to advance the substantive equality rights of women and girls through litigation, law reform, and public education. Since 1985, LEAF has intervened in landmark cases that have advanced equality in Canada—helping to prevent violence, eliminate discrimination in the workplace, provide better maternity benefits, ensure a right to pay equity, and allow access to reproductive freedoms.
About West Coast LEAF:
West Coast LEAF is the first and only organization in BC dedicated to using the law as a strategy to work towards an equal and just society for all women and people who experience gender-based discrimination. Since its founding in 1985, West Coast LEAF has helped bring about some of Canada’s most important feminist victories for reproductive rights, workplace standards, fairness in family law, legal protections from sexual harassment, and more.
About David Asper Centre for Constitutional Rights:
The David Asper Centre for Constitutional Rights is devoted to realizing constitutional rights through advocacy, research and education. The Centre aims to play a vital role in articulating Canada’s constitutional vision to the broader world. The cornerstone of the Centre is a legal clinic that brings together students, faculty and members of the bar to work on significant constitutional cases and advocacy initiatives. The Centre was established through a generous gift from U of T law alumnus David Asper (LLM ’07). For more information please visit www.aspercentre.ca.
For media inquiries, contact:
Lobat Sadrehashemi, Senior Clinic Lead
Immigration & Refugee Legal Clinic
E: [email protected]
Cheryl Milne, Executive Director
David Asper Centre for Constitutional Rights
E: [email protected]
Cee Strauss, Staff Lawyer
Women’s Legal Education and Action Fund (LEAF)
E: [email protected]
Kate Feeney, Director of Litigation
West Coast LEAF
E: [email protected]