June 16, 2022 – For Immediate Release
Ottawa, unceded Algonquin Anishinaabe territory – In today’s ruling on the Safe Third Country Agreement (STCA) challenge, 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.
Canadian Council for Refugees is a challenge to the constitutionality of the STCA under ss.7 and ss.15 of the Charter. 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 people marginalized because of gender, because their claims of gender-based violence are much more likely to be denied in the U.S. than in Canada.
LEAF, West Coast LEAF, and the David Asper Centre for Constitutional Rights intervened in the case to advocate for women and refugees marginalized because of gender and to ensure that equality rights claims would not be sidelined again.
The Supreme Court of Canada unanimously upheld the STCA regime as constitutional under section 7 of the Charter, finding that the legislation did not breach the Applicants’ liberty and security rights. However, the Supreme 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 Federal Court for determination.
LEAF, West Coast LEAF and the David Asper Centre are glad to see a recognition of the profound seriousness of gender-based violence and a clear assertion by the Court that equality rights cannot be ignored.
The Court directly acknowledged their intervention to state that “claims based on s. 15 are not secondary issues only to be reached after all other issues are considered” and held that the significant evidentiary record related to gender-based violence presented by the Applicants must be assessed properly by a lower court.
“The decision demonstrates the importance of having public interest interveners to ensure that the rights of equality-seeking groups are heard by the Court,” says Cheryl Milne, Executive Director of the Asper Centre and co-counsel for LEAF, West Coast LEAF, and the Asper Centre. “By focusing on the section 15 claim, we were able to highlight the importance of acknowledging the unique harms faced by women and refugees marginalized because of gender when other parties had limited space to present this perspective. The Court responded and acknowledged this substantive claim needs to be addressed.”
However, the Court’s analysis of s. 7 raises troubling implications for access to justice and future challenges to the refugee determination system.
“This decision is disappointing since it finds the shortcomings in the US refugee determination system, including the use of immigration detention and problematic approaches to gender-based refugee claims, tolerable” says Jamie Liew, Professor at the University of Ottawa’s Faculty of Law and co-counsel for LEAF, West Coast LEAF, and the Asper Centre. “It allows the government to continue to close the land border to refugee claimants and evade our international legal obligations.”
This ruling comes months after Canada and the US announced an expansion for the STCA across the entire land border.
“This decision has wider implications for Charter claims in the future,” says Liew. “The first is that courts can no longer ignore section 15 and equality rights claims whenever they are raised. The second is that for those putting forward section 7 claims, unfortunately, there appears to be a huge evidentiary burden, and this raises questions about the ability to access Charter rights in the courts.”
The Supreme Court’s decision leaves open the possibility that the STCA could still be struck down. The case will now be sent back to the Federal Court to hear full evidence of gender-based harm for a determination of the s.15 claim.
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.
Professor, Faculty of Law, University of Ottawa
Executive Director, David Asper Centre for Constitutional Rights
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.