Safe Third Country Agreement does not violate s. 7

The Supreme Court of Canada has ruled in a unanimous decision that the Safe Third Country Agreement between Canada and the United States does not violate the s. 7 rights of refugee claimants. However, the case has been sent back to the Federal Court to rule on a claim regarding equality rights under s. 15.

The treaty, in effect since 2004, recognizes both countries as safe destinations for refugees, but contained a loophole that allowed them to make asylum claims at unofficial ports of entry. In March, a deal struck between the neighbouring countries extended the border agreement across the entire Canada-U.S. border.

The Canadian Council for Refugees brought the constitutional challenge opposing the treaty on the grounds that designating the U.S. as a safe third country for migrants violates Charter rights under sections 7 and 15. 

In 2020, the Federal Court agreed that enforcing the STCA infringes on the right to life, liberty, and security of persons under Section 7 due to the U.S.'s harsh detention practices. The Canadian government has argued that refugees have access to fair asylum and detention processes in the U.S. In 2021, the Federal Court of Appeal set aside that decision when it allowed an appeal by the Canadian government.

Because it held the agreement violated s. 7, the Federal Court chose not to rule on the s. 15 claim that women fearing gender-based persecution, such as domestic or sexual violence, are inadequately protected under the U.S. refugee claims system and, therefore, adversely affected.

Justice Nicholas Kasirer wrote that a s. 7 analysis of s. 159.3 of the Immigration and Refugee Protection Regulations engages issues surrounding the liberty and security of the person, but the agreement contains safety valves whereby "claimants can be exempted from return." It's possible, the court recognized, that administrative decision-makers may not always apply these safety measures appropriately, but it held that claimants can still seek Charter relief based on individual circumstances.

Having found no breach under s. 7, the Supreme Court ruled that the challenge based on s. 15 should go back before the Federal Court for analysis. 

"I would not fault the Federal Court judge here for exercising judicial restraint and not deciding the s. 15 claim," Justice Kasirer wrote, recognizing the merits of avoiding "unnecessary constitutional pronouncements." Still, that restraint "must be weighed against other factors, such as the possibility of an appeal and fairness to the parties."

Justice Kasirer also noted concerns raised by interveners regarding a perceived pattern of courts ignoring s. 15 claims. "One can well understand the concern: claims based on s. 15 are not secondary issues only to be reached after all other issues are considered," the court wrote. "The Charter should not be treated as if it establishes a hierarchy of rights in which s. 15 occupies a lower tier."