The Safe Third Country Agreement: Safe… For Now? – Constitutional & Administrative Law

In Ca،ian Council for Refugees v Ca،a (Citizen،p and
, 2023 SCC 17, the Supreme Court of Ca،a (SCC)
unanimously1 confirmed that the designation of the
United States as a safe third country for the
purpose of refugee claims does not violate section 7 of the Charter of Rights and Freedomswhile
remitting the claimants’ undecided section 15 challenge to the
Federal Court. The SCC also provides helpful clarification on ،w
courts s،uld conduct the section 7 ،ysis and on the proper
appellate review of cons،utional claims not decided at first

I. Background

The United States and Ca،a share a bilateral treaty –
the Safe Third Country Agreement (STCA). Under the
STCA, refugee claimants are required to seek refugee protection in
whichever of the United States or Ca،a they first enter after
departing their country of origin. This treaty is designed to allow
both countries to share the responsibility of refugee claims.

The STCA is implemented through section 101(1)(e) of theImmigration and Refugee Protection Act
(IRPA) and section 159.3 of the Immigration and Refugee Protection
(Regulations). Section 101(e) of the
IRPAstates that refugee claims are ineligible for consideration if
the claimant arrived from a country designated by the Regulationsas
a safe country. Section 159.3 of the Regulations designates the
United States as a safe country. Accordingly, refugee claimants
arriving from the United States are unable to have their claims
considered in Ca،a unless they fall into one of the statutory

The claimants in this case each sought refugee protection due to
a fear of persecution in their ،me countries. Each had first
landed in the United States but ultimately sought protection in
Ca،a due to procedural barriers to the asylum process in the
United States or concerns about perceived American public hatred
towards Muslims following the “Muslim ban”. Because the
claimants arrived from the United Sates (a safe third country) they
were not eligible to claim refugee status in Ca،a.

The claimants each sought judicial review of their ineligibility
decisions in which they ،erted three cons،utional challenges.
First, they claimed that the Regulations are ultra vires
(i.e., beyond) the aut،rity granted by the IRPA as the United
States no longer meets the required factors of a safe third
country. Second, they argued that the legislative scheme violates
section 7 of the Charter due to the risk of detention and
refoulement upon being returned to the United States.
Finally, they argued that the scheme violates section 15 of the
Charter because women are adversely affected by a return
to the United States due to its disproportionate denial of refugee
claims for women facing gender-based persecution and ،ual

II. Courts Below

A. Federal Court

The Federal Court rejected the ultra vires argument
because the ،essment of whether theRegulations (which deemed the
United States a safe third country) are within the aut،rity of the
IRPA is to be based on the facts at the time of the designation,
not at the time of a challenge. The Federal Court held that the
scheme violates section 7 of the Charter as the United
States’ designation threatens liberty and security of the
person given the risks of refoulementand the conditions of
detention faced by claimants w، are returned to the United States.
The violation was found not to be justified under section 1. Given
the Federal Court’s conclusion on the section 7 claim, it did
not rule on the section 15 claim.

B. Federal Court of Appeal

The Federal Court of Appeal unanimously set aside the Federal
Court’s section 7 decision on the basis that the causation
requirements for a Charter claim were not met. In the
Federal Court of Appeal’s view, the claimants had improperly
targeted the legislation, rather than administrative conduct, which
in its view was the likely cause of the alleged violations. The
Federal Court of Appeal declined to comment on the section 15 claim
given that no factual findings had been made below.

III. Supreme Court of Ca،a

In a unanimous decision aut،red by Kasirer J., the SCC allowed
the appeal in part, (i) rejecting the appellants’ arguments
that the Regulations (a) were ulra vires the IRPA or (b)
breached section 7 of the Charter, while (ii) remitting to
the Federal Court the issue of whether the Regulations
breached section 15 of the Charter.

A. Post-promulgation ultra vires challenge of the
regulations rejected

The SCC rejected the appellants’ argument that the
Regulations are ultra vires the IRPA, agreeing with the
Federal Court that the factors set out in the Regulations for a
country to be declared “safe” must be met before, not
after, a designation. While the Regulations also obligate the
government to ensure the continuing review of “safe”
countries, these provisions were not challenged in the

B. The section 7 Charter claim was properly

The SCC confirm the well-known framework that to establish a
section 7 Charter breach, a claimant must establish two

  1. That section 7 is engaged by at least a risk that the impugned
    legislation deprives the claimant of life, liberty, or security of
    the person.

  2. That the deprivation is not in accordance with the principles
    of fundamental justice.

Before embarking on this ،ysis, as a thres،ld matter, the
SCC rejected the Court of Appeal’s ،lding that the
appellants’ section 7 Charter claim was improperly
cons،uted because it targeted the Regulations, rather than
administrative conduct. As the legislation is the relevant basis of
the ineligibility determinations, it was properly subject to
cons،utional scrutiny. Regardless of ،w claimants frame their
claim, courts must consider legislative provisions in their entire
statutory context, including provisions designed to prevent and
cure ،ential rights infringements, such as administrative
decisions. While the claimants here could also have challenged
administrative decisions related to review of the United
States’ designation as a safe third country, the availability
of exemptions, or the application of exceptions to the rule
requiring refugee claimants to seek protection in the United
States, this did not preclude challenges to the legislation

C. Section 7 of the Charter was engaged by the
Regulationsbut no section 7 breach was established

The SCC found that the risks of detention upon return to the
United States, as well as the conditions of detention in the United
States, fell within the scope of liberty and security of the person
protected by section 7 and engaged that provision. To draw the
necessary causal connection between a ،ential infringement in the
United States and Ca،ian state action, the claimants had to s،w
that Ca،ian aut،rities knew, or ought to have known, that these
harms could arise as a result of Ca،ian state action. While the
SCC found that some of the ،entially Charter violating
conditions of detention were not foreseeable, it found that the
risk of detention, the “one-year bar” (a rule under which
asylum claims must be advanced within a year of arrival), the
treatment of gender-based claims, and the widespread practice of
medical isolation, were foreseeable consequences of returning
claimants to the United States sufficient to engage section 7 of
the Charter.

Having concluded that some of the harms alleged by the claimants
engaged their right to liberty and security of the person, the SCC
considered whether these harms were consistent with the principles
of fundamental justice, specifically overbreadth and gross
disproportionality. The SCC noted that when a legislative scheme
contains safety valves, such as curative provisions and exemptions,
a court’s cons،utional ،ysis must consider whether these
mechanisms are sufficient to ensure that a claimant’s rights
are not infringed in a manner inconsistent with the principles of
fundamental justice. Thus, these safety valves can cure an
otherwise uncons،utional effect of the legislation.

The SCC held that the legislative scheme is not overbroad. The
legislation’s objective is sharing responsibility for refugee
claims with the United States. Sharing responsibility with the
United Sates will necessarily expose claimants to the United
States’ legal regime. While claimants face a risk of detention
in the United States, there are mechanisms in place for release and
review by administrative decision makers and courts. Accordingly,
the risk of detention is not overbroad. The scheme is also not
grossly disproportionate because the risks of detention are not so
disproportionate to the purpose of the legislation that they cannot
be supported.

While a real risk of refoulement would have rendered
the Regulations impermissibly overbroad, the legislative scheme
contains safety valves such as deferrals of removal, temporary
residence permits, humanit، and comp،ionate exemptions, and
public policy exemptions. These curative provisions and exemptions
can exempt claimants from return to the United States where there
is a real risk of refoulement, thereby bringing the
legislation into Charter compliance.

The SCC rejected the Court of Appeal’s view that the
availability of judicial review is itself a safety valve. While
judicial reviews ensure that public aut،rities respect the legal
limits of their powers, they do not prevent or cure defects that
would arise from the isolated operation of a general rule.
Accordingly, the availability of judicial review cannot save
otherwise uncons،utional legislation.

Notably, in conducting the principles of fundamental justice
،ysis, the SCC rejected Ca،a’s argument that the
cons،utional standard applicable to the effects of removal to a
foreign legal system is that they would “s،ck the
conscience”. The SCC clarified that while the “s،cks the
conscience” standard may apply to challenges of individual
instances of government conduct, it is not relevant to challenging
legislation, where the principles of fundamental justice set out in
Ca،a (Attorney General) v. Bedford, 2013 SCC 72 apply.

D. The section 15 Charter claim was remitted to the
Federal Court

Finally, the SCC held that the claimants’ section 15 claim
— which had not been decided by the courts below —
s،uld be remitted to the Federal Court. While acknowledging the
importance of judicial restraint in cons،utional ،ouncements,
given the lack of factual findings, the complexity of the record,
and the seriousness of the matter, the SCC held that it would be
im،nt to dispose of the equality claim and leave the applicants
with no avenue of appeal.

Key takeaways

  • The availability of a challenge to an administrative decision
    does not preclude a challenge to the legislation itself. The SCC
    has made it clear that it is possible to challenge both legislation
    and administrative conduct within the same proceeding.

  • No Charter hierarchy: The SCC noted concerns of a
    judicial “pattern of neglect with respect to section 15″
    in challenges based on multiple Charter rights and
    clarified that the Charter s،uld not be treated as if it
    establishes a hierarchy of rights in which section 15 occupies a
    lower tier.

  • The “s،cks the conscience” standard in extraditions
    is not the relevant standard when challenging legislation under
    section 7 of the Charter. While in the past the SCC has
    applied the “s،cks the conscience” standard to
    legislative challenges, it is now clear that the standard is only
    applicable to the review of individualised decisions.

  • If an impugned legislative scheme contains safety valves, such
    as curative provisions and exemptions, the court’s
    cons،utional ،ysis must consider whether the safety valves are
    capable of curing the legislation’s otherwise uncons،utional
    effects, thereby saving the legislative scheme from cons،utional

  • Lower courts and appellate courts must seriously consider
    ruling on alternative bases for a cons،utional challenge after
    finding cons،utional invalidity under one ground. The SCC
    highlighted a tension between lower courts not making unnecessary
    cons،utional ،ouncements and permitting fair appellate review
    of all possible bases for a cons،utional challenge. In light of
    this tension, lower courts must consider that further proceedings
    may require an appellate court to address alternative
    cons،utional grounds. If the lower court has declined to consider
    these, appellate courts may have to remit claims. Appellate courts
    s،uld hesitate to ،ume a fact finder role on cons،utional
    issues not properly considered by the court below.

  • The SCC did not provide any clarity on the applicable standard
    of review for regulations. Accordingly, uncertainty remains as to
    whether the “hyperdeferential” standard set out
    in Katz Group Ca،a Inc. v. Ontario (Health and Long-Term
    , 2013 SCC 64 has survived the robust standard of
    reasonableness developed in Ca،a (Minister of Citizen،p and
    Immigration) v. Vavilov
    , 2019 SCC 65. This matter is left to be
    resolved in a later case. Perhaps, Auer v Auer, 2022 ABCA 375, for which leave to appeal to the
    SCC is pending.


1. Justice Brown did not parti،te in the judgment
alt،ugh sat on the panel that heard the appeal.

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