February 11, 2021

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 Canada-U.S. Safe Third Country Agreement (the STCA). Under the STCA regime, 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 STCA regime was challenged on grounds that it violates the liberty and security interests of refugee claimants under section 7 of the Canadian Charter of Rights and Freedoms (“Charter”), and that it discriminates against women refugees, including those fleeing gender-based persecution. The Federal Court judge found the STCA unconstitutional under s. 7 of the Charter. However, she decided not to rule on whether the STCA discriminates against women under section 15 of the Charter, a decision that is the subject of the cross-appeal filed in this case.  

LEAF, West Coast LEAF, and the Asper Centre had sought leave to intervene in the cross-appeal to argue that when Charter litigants spend significant time and money to enforce their constitutionally protected equality rights, and when the court agrees that a serious constitutional question has been raised, that court must make findings and rule 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.  

On January 27, 2021, the Federal Court of Appeal dismissed our motion for leave to intervene, along with the applications of all five other proposed interveners.

Without the benefit of our arguments, the Court of Appeal will be considering whether the trial judge erred by not ruling on the equality rights claim without a full appreciation of both the access to justice concerns and the impact on equality jurisprudence of failing to decide equality rights claims when they come to court. Declining to consider whether the STCA discriminates on the basis of gender minimizes the serious impact of gender-based violence, and also prevents proper Charter interpretation. We are disappointed that the Court will be making its decisions without our submissions on these issues.

We are also disappointed by the reasoning in the order dismissing our motion to intervene, which adopts a highly restrictive understanding of the role of interveners, inconsistent with that of past decisions.

Collectively and individually, the LEAF, West Coast LEAF, and the Asper Centre possess significant and longstanding experience and expertise in advancing access to justice as it relates to the Charter, and in advancing the equality rights of women. Intervening in cases involving women who have experienced gender-based violence has been and remains one of the primary ways in which LEAF and West Coast LEAF fulfill their mandates to protect and promote equality rights. Intervening in cases involving equality rights, access to justice in issues of constitutional law, and Charter remedies is a core mandate of the Asper Centre. For these reasons, we have a genuine interest in the STCA challenge.

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. Thank you to our members for their support of this intervention application. We look forward to the next opportunity to ensure that our laws respect the equality rights of all, and of women asylum seekers in particular.

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 were (in alphabetical order): Mary Eberts, Jennifer Koshan, Jamie Liew, and Margot Young. The staff members working on this intervention were: 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]