October 6, 2022
Ottawa, unceded Algonquin Anishinaabe territory – The Safe Third Country Agreement (STCA) discriminates against refugee women, yet courts have decided not to consider their arguments. When the Supreme Court of Canada hears submissions in Canadian Council for Refugees, et al. v. Minister of Citizenship and Immigration, et al. on October 6, LEAF, West Coast LEAF, and the David Asper Centre for Constitutional Rights will be there to argue that equality rights claims cannot be ignored.
Canadian Council for Refugees is a challenge to the constitutionality of 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 is particularly harmful to women and gender diverse people because their claims of gender-based violence are more likely to be denied in the U.S. than in Canada. In fact, it’s nearly impossible to make such a claim in the U.S. Yet, when a woman who was denied entry to Canada brought this issue to court as a violation of her equality rights under section 15 of the Canadian Charter of Rights and Freedoms, her arguments were ignored. The judge decided to prioritize an analysis of the STCA through the lens of the Charter right to liberty and security of the person, choosing not to address the equality rights issues in the case. The Federal Court of Appeal agreed with that decision.
The judge’s decision is part of a troubling pattern of courts neglecting section 15 equality rights claims. Ignoring equality rights in this case not only minimizes the gendered impacts of the STCA regime, but is potentially life-threatening for women and gender diverse refugees. LEAF, West Coast LEAF, and the Asper Centre will argue that this must stop.
“The courts’ choice not to decide the equality rights claim is a serious access to justice issue,” says Cheryl Milne, Executive Director of the Asper Centre. “Assembling evidence for a section 15 claim is time-consuming and expensive. Given how hard it is for equality rights claimants to make it to court, declining to consider equality rights arguments raises concerns about fundamental fairness and the perpetuation of intersecting inequalities.”
“The STCA endangers the lives of refugees, especially women and gender diverse people,” says Humera Jabir, Staff Lawyer at West Coast LEAF. “Section 15 of the Charter guarantees claimants the right to equal protection of the law. If courts continue to ignore equality rights claims, then governments will never be held accountable for their discriminatory actions.”
“In declining to decide the section 15 claim, the court has created an additional barrier for women and 2SLGBTQQIA survivors of gender-based violence seeking asylum to have their distinct harms be addressed,” says Cee Strauss, Staff Lawyer at LEAF. “We will be in court on October 6 to argue that not only does this further disadvantage people from historically disadvantaged groups, but it also undermines the structure of the Charter itself.”
“Considering Canada’s international legal obligations under the Refugee Convention, we should be troubled by how the Safe Third Country Agreement thins our commitment to protecting refugee claimants, especially those whose claim is based on gender identity and violence,” says Jamie Liew, Associate Professor at the University of Ottawa’s Faculty of Law.
Cheryl Milne and Jamie Liew will represent LEAF, West Coast LEAF, and the Asper Centre pro bonobefore the Supreme Court. The hearing will be available by webcast on the Supreme Court’s website on October 6, 2022.
LEAF is grateful to the members of the case committee that have guided, informed, and supported this intervention: Coline Bellefleur, Mary Eberts, Jennifer Koshan, and Margot Young.
Read LEAF, West Coast LEAF, and the Asper Centre’s Supreme Court of Canada factum.
Executive Director, David Asper Centre for Constitutional Rights
Associate Professor, Faculty of Law, University of Ottawa
Staff Lawyer, West Coast LEAF
604-684-8772, ext. 212
About Women’s Legal Education and Action Fund (LEAF)
The Women’s Legal Education and Action Fund (LEAF) is a national not-for-profit that works to advance the equality rights of women, girls, trans, and non-binary people in Canada through litigation, law reform, and public legal education. Since 1985, LEAF has intervened in more than 100 cases that have helped shape the Canadian Charter of Rights and Freedoms. To find out more, visit www.leaf.ca.
About West Coast LEAF
West Coast LEAF is a non-profit organization formed in 1985, the year the equality guarantees of the Canadian Charter of Rights and Freedoms came into force. West Coast LEAF’s mandate is to use the law to create an equal and just society for all women and people who experience gender-based discrimination in BC. In collaboration with community, we use litigation, law reform, and public legal education to make change. For more information, visit westcoastleaf.org.
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.