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Federal court invalidates safe third country agreement Immigration

Federal court invalidates part of the STCA

On July 22, 2020, Judge McDonald at the Federal Court of Justice ruled that the provisions of the Safe Third Country Agreement (STCA) violated Section 7 of the Act Canadian Charter of Rights and Freedoms and that this infringement is not justified under § 1.[1] Thus the provisions have no power or effect.[2]

Judge McDonald has given Parliament 6 months to respond to this annulment.[3]

What is the STCA?

The Safe Third Country Agreement (STCA) was designed to help Canada and the United States share responsibility for refugees in a manner consistent with the Refugee Convention.[4] It has been in force since December 2014 when Canada and the United States declared both countries safe from refugees.[5]

It was determined by § 101 Paragraph 1 Letter E of the Immigration and Refugee Protection Act and by section 159.3 of the Immigration and Refugee Protection Regulationsand describes the USA as a “safe third country”.[6]

The STCA is of the opinion that those who come to Canada via a Land Port of Entry (POE) from the United States cannot have refugee rights in Canada unless they have close family members in Canada and certain exceptions apply.[7] Applicants arriving by air, sea or between land POUs from the United States can have their refugee applications assessed.[8]

Who made the claim?

The individual applicants, whose situation is different, sought protection from refugees in Canada because they feared persecution in their home country.[9] However, when they arrived from the United States, the STCA did not entitle them to file a refugee application in Canada.[10] One of the applicants was arrested immediately after returning to the United States[11]

Several organizations, including the Canadian Refugee Council, Amnesty International and the Canadian Church Council, were given the right to participate in the applications as parties of public interest.[12]

What exactly was the challenge?

The applicants contested the constitutionality of the STCA implementation legislation, and the individual applicants each requested a judicial review.[13]

The applicants’ challenge to the STCA consisted of two fronts.[14] First, they argued that the laws and regulations that make up the STCA are Ultra viruses, because the Canadian government has failed to verify the United States’ ongoing designation as a “safe third country”[15] Applicants claimed that the United States was not a “safe third country” for legal purposes and that the Canadian government was aware of this because the US asylum practices and guidelines did not comply with the UNHCR guidelines.[16]

Second, they claimed that the legal provisions implementing the STCA contradict Sections 7 and 15 of the STCA Canadian Charter of Rights and Freedoms.[17]

Court decision

Judge McDonald stated that the STCA legislation is not Ultra viruses.[18] However, she noted that “the detention and its consequences are inconsistent with the spirit and purpose of the STCA and violate the rights guaranteed under Section 7 of the Act Charter,”And is not saved by section 1.[19]

Breakdown – Section 7 of the Charter

§ 7 of the Charter provides that:

“Everyone has the right to life, liberty and security of the person and the right not to be withdrawn, except in accordance with the principles of basic justice.”[20]

Therefore, there are two considerations in Section 7. First, an applicant must demonstrate that the contested law deprives them of their right to life, liberty, or security.[21] If it is determined that section 7 is being used, the applicant must demonstrate that this withdrawal does not conform to the principles of fundamental justice of arbitrariness, excess, and gross disproportionality.[22]

Freedom and security rights

In this case, the issue regarding Section 7 was when:

“The measures taken by Canadian officials to return ineligible STCA applicants to US authorities where they are detained are a sufficient causal link to ensure the freedom and security of the person’s interests.”[23]

Justice McDonald cited the applicant’s detention as compelling evidence of the exercise of freedom under Section 7 since she was detained immediately after her forced return to the United States[24] In her affidavit, Ms. Mustefa declares her solitary confinement as “a terrible, isolating, and psychologically traumatic experience.”[25] She described skipping meals as she had no access to suitable foods and lost almost 15 pounds.[26] After she was released from solitary confinement, she was detained along with people who were convicted and who said the facility was “freezing cold”.[27]

Due to the conditions for the detainees, it was also found that security rights under Section 7 of the Charter.[28] Another of the applicants, ABC, feared the MS-13 gang if forced to return to El Salvador.[29] Due to various obstacles to asylum seekers in the United States, such as access to legal advice and the acquisition of the necessary documents, Justice McDonald concluded in the case of ABC that there was a real risk of rejection if detained in the United States.[30] The use of solitary confinement and the general conditions of detention were also factors that increased the security of people’s interests.[31]

Justice McDonald said that just because STCA returnees are detained by U.S. authorities does not immunize Canada’s actions.[32]

Principles of fundamental justice

In this case, Justice McDonald found that the STCA’s legal provisions were both too broad and grossly disproportionate.[33]

It has been found that the STCA provisions are widespread, as the STCA returnees have no connection with the “mischief” considered by the legislator.[34]

In addition, it was found that the risk of detention and the loss of security of the person, which are facilitated by the STCA, are disproportionate to the administrative advantages of the STCA.[35]

Saved by section 1?

Section 1 of the Charter provides that:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms defined in its topic only within those legally prescribed reasonable limits that are demonstrably justified in a free and democratic society. “[36]

According to Section 1, respondents bear the burden of proof and need evidence to bear this burden.[37]

The respondents argued that the urgent and essential objectives of the legislation, namely the division of responsibility, had been achieved.[38] They argued that the challenges for the Canadian refugee system would increase if the volume of applicants for refugees increased, and that although failed STCA applicants are detained in the United States, a fair trial review process is available.[39]

Justice McDonald, however, found the argument to be weak, as Canada, as in the past, has shown flexibility in adapting to fluctuations in refugee numbers in response to specific needs.[40]

As a result, it was determined that the STCA provisions were not saved by Section 1.[41]

Wait, what about section 15 of the charter?

Justice McDonald declined section 15 of the Charter Contestation based on the discovery of the violation of § 7.[42]

Quotes

[1] Canadian Refugee Council Against Canada (Immigration, Refugees, and Citizenship)2020 FC 770, para. 162.

[1] Ibid.

[1] Ibid in paragraph 163.

[1] Ibid.

[1] “Safe third country” online: Canadian Refugee Council .

[1] Above Note 1 in paragraph 2.

[1] Ibid in paragraph 3.

[1] Ibid.

[1] Ibid in paragraph 5.

[1] Ibid.

[1] Ibid in paragraph 92.

[1] Ibid in paragraph 7.

[1] Ibid in paragraph 1.

[1] Ibid in paragraph 9.

[1] Ibid.

[1] Ibid in paragraph 65.

[1] Ibid in paragraph 10.

[1] Ibid in paragraph 80.

[1] Ibid in paragraph 10.

[1] Canadian Charter of Rights and Freedoms, p 7, Part I of the Constitution Act, 1982, as Appendix B to the Canada Act 1982 (UK), 1982, c 11, p 7 [Charter].

[1] Above Note 1 in paragraph 85.

[1] Ibid at paragraphs 85, 86.

[1] Ibid in paragraph 94.

[1] Ibid in paragraphs 94, 103.

[1] Ibid at 96.

[1] Ibid.

[1] Ibid.

[1] Ibid in paragraph 115.

[1] Ibid in paragraph 105.

[1] Ibid in paragraph 106.

[1] Ibid in paragraph 110.

[1] Ibid in paragraph 100.

[1] Ibid at paragraphs 122-136.

[1] Ibid in paragraph 131.

[1] Ibid in para. 136.

[1] Charter, see above Note 19 at s. 1.

[1] Above Note 1 in paragraph 143.

[1] Ibid in paragraph 145

[1] Ibid in paragraphs 145, 146.

[1] Ibid in paragraph 147.

[1] Ibid in paragraph 149.

[1] Ibid in para. 154.

[1] Canadian Refugee Council Against Canada (Immigration, Refugees, and Citizenship)2020 FC 770, para. 162.

[2] Ibid.

[3] Ibid in paragraph 163.

[4] Ibid.

[5] “Safe third country” online: Canadian Refugee Council .

[6] Above Note 1 in paragraph 2.

[7] Ibid in paragraph 3.

[8] Ibid.

[9] Ibid in paragraph 5.

[10] Ibid.

[11] Ibid in paragraph 92.

[12] Ibid in paragraph 7.

[13] Ibid in paragraph 1.

[14] Ibid in paragraph 9.

[15] Ibid.

[16] Ibid in paragraph 65.

[17] Ibid in paragraph 10.

[18] Ibid in paragraph 80.

[19] Ibid in paragraph 10.

[20] Canadian Charter of Rights and Freedoms, s 7, part I of the Constitutional Law, 1982, as Schedule B for Canada Act 1982 (UK), 1982, c 11, s 7[[[[Charter].

[21] Above Note 1 in paragraph 85.

[22] Ibid at paragraphs 85, 86.

[23] Ibid in paragraph 94.

[24] Ibid in paragraphs 94, 103.

[25] Ibid at 96.

[26] Ibid.

[27] Ibid.

[28] Ibid in paragraph 115.

[29] Ibid in paragraph 105.

[30] Ibid in paragraph 106.

[31] Ibid in paragraph 110.

[32] Ibid in paragraph 100.

[33] Ibid at paragraphs 122-136.

[34] Ibid in paragraph 131.

[35] Ibid in para. 136.

[36] Charter, see above Note 19 at s. 1.

[37] Above Note 1 in paragraph 143.

[38] Ibid in paragraph 145

[39] Ibid in paragraphs 145, 146.

[40] Ibid in paragraph 147.

[41] Ibid in paragraph 149.

[42] Ibid in para. 154.

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