Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2021 FCA 72, 2023 SCC 17 (39749)
“Canada and the United States are parties to a bilateral treaty commonly known as the “Safe Third Country Agreement” designed to enhance their sharing of responsibility for considering refugee status claims. In essence, the treaty provides that refugee claimants must, as a general rule, seek protection in whichever of the two countries they first enter after leaving their country of origin. The Safe Third Country Agreement is given effect in Canadian domestic law through the Immigration and Refugee Protection Act (“IRPA”) and its regulations (“IRPR”). Under s. 101(1)(e) of the IRPA, refugee status claims are ineligible to be considered in Canada if the claimant came from a country designated by the IRPR. Section 102(1)(a) of the IRPA provides that countries may only be so designated if they are viewed as complying with their non‑refoulement obligations under international law, which prohibit directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment. Section 102(2) lists factors for the Governor in Council to consider in designating a country, and s. 102(3) creates an obligation for the Governor in Council to ensure the continuing review of those factors with respect to each designated country. The United States is designated under s. 159.3 of the IRPR.
Several individuals arrived from the United States to claim refugee protection in Canada. Their claims were ineligible to be referred to the Refugee Protection Division, pursuant to s. 101(1)(e) of the IRPA and s. 159.3 of the IRPR. However, most of the individuals were not returned to the United States, as they had obtained a stay of removal or temporary resident permit. One individual was returned to the United States. That individual says American officials detained her in solitary confinement for a week pending the results of a tuberculosis test and then detained her for another three weeks in an abnormally cold facility, where individuals convicted of criminal offences were present and where her religious dietary restrictions were not respected.
The individuals whose claims were ineligible to be referred to the Refugee Protection Division, along with public interest litigants (collectively, the “applicants”), challenged the validity of s. 159.3 of the IRPR on the basis that the designation of the United States was outside the authority granted by the IRPA because of post‑promulgation constraints on the Governor in Council’s statutory authority to maintain a designation. They also argued that s. 159.3 of the IRPR and s. 101(1)(e) of the IRPA violated the rights guaranteed by ss. 7 and 15 of the Charter, asserting that the legislative scheme results in Canadian immigration officers summarily returning claimants to the United States without considering whether that country will respect their rights under international law, including those related to detention and non‑refoulement.
The Federal Court judge rejected the ultra vires argument because whether a regulation is within the authority delegated by a statute is assessed based on facts at the time of promulgation. With respect to s. 7 of the Charter, she found the alleged violations were largely substantiated and most grave, and that deprivations of liberty and security of the person for refugee claimants arose because those returned to the United States faced risks of refoulement as well as other harm relating to immigration detention. She concluded that s. 7 was violated and that this breach was not justified under s. 1, and she therefore declined to rule on the s. 15 claim. She declared s. 101(1)(e) of the IRPA and s. 159.3 of the IRPR of no force or effect pursuant to s. 52 of the Constitution Act, 1982. The Court of Appeal allowed the appeal brought by the ministers, dismissed the cross-appeal of the s. 15 claim and the ultra vires argument, and set aside the judgment of the Federal Court. The basis for these conclusions was that the causation requirements for a Charter claim were not met because the applicants improperly targeted the legislation rather than administrative conduct.”
The SCC (8:0) allowed the appeal in part.
Justice Kasirer wrote as follows (at paras. 4, 50, 54, 59, 69, 83, 89, 99, 102, 108, 147, 163, 165, 175, 183):
“Certain questions are not in issue in this appeal. First, there is no debate that safe third country agreements, as a general matter, may be compatible with international law … Second, the appellants do not attack the validity of the Safe Third Country Agreement itself. Third, this Court is not tasked with assessing the wisdom of Canadian immigration policy, a matter that courts are not institutionally designed to evaluate, much less reform. Fourth, this Court is not asked to resolve the thorny issue of irregular entry into Canada at border crossings other than official land ports of entry … Instead, the appeal focuses on whether the Canadian legislative regime implementing the Safe Third Country Agreement — that is, the relevant provisions of the IRPA and IRPR — complies with constitutional and administrative law requirements.
… I agree with the respondents that the vires of s. 159.3 of the IRPR must be examined at the time of promulgation.
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Focusing on the appropriate date and recognizing that the s. 102(3) reviews are outside the scope of a vires argument, I am persuaded that the appellants fail on this point. As this Court has held, “[r]egulations benefit from a presumption of validity” (Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25; see also P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at para. 1314). Thus, to succeed in their argument based on s. 159.3’s inconsistency with the provisions they rely on, the appellants must show that on the date of promulgation, the designation of the United States was not authorized by s. 102(1)(a) or (2) of the IRPA. Because they have directed their argument at post‑promulgation developments, the appellants have not done so. Accordingly, the appellants’ submission that s. 159.3 of the IRPR is ultra vires should be rejected.
The parties agree that s. 159.3 of the IRPR was an appropriate target for a Charter challenge. The Federal Court of Appeal had disagreed, holding that the claim was not properly constituted because it should have been directed at other forms of state action that are the “real cause” of any possible infringements. In particular, the court concluded that the appellants should have targeted the administrative reviews, required by s. 102(3) of the IRPA, of the United States’ designation and related administrative conduct. In my respectful view, the Court of Appeal erred by misapplying the relevant Charter causation jurisprudence.
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Charter challenges need not target preventative and curative provisions when the provision of general application to which they relate is a cause of the alleged mischief. Following PHS, courts must consider legislative provisions in their entire statutory context, irrespective of how the parties frame their challenge of a legislative scheme. Indeed, a failure to consider a relevant related provision can “undermine the legitimacy” of constitutional analysis (R. v. Parker (2000), 49 O.R. (3d) 481 (C.A.), at para. 171, per Rosenberg J.A.).
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In light of the foregoing, the appellants’ challenge was properly constituted. I now turn to the substantive s. 7 Charter analysis. While the parties agree that s. 159.3 of the IRPR engages s. 7, they disagree on the particulars of each alleged deprivation and their causal connections to Canadian state action. The first stage of the s. 7 analysis makes clear that the Federal Court judge was right that s. 159.3 engages liberty and security of the person. But in my respectful view, she erred in her assessment of certain particulars.
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While returnees do not face automatic detention in the United States, the risk of detention remains an effect that engages liberty. This Court has repeatedly held that “liberty” encompasses freedom from detention, imprisonment and the threat thereof (R. v. Vaillancourt, [1987] 2 S.C.R. 636, at p. 652; R. v. Swain, [1991] 1 S.C.R. 933, at p. 969; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, at para. 64; R. v. Demers, 2004 SCC 46, [2004] 2 S.C.R. 489, at para. 30). Thus, because the question at the engagement stage is simply whether the appellants have demonstrated an effect within the scope of s. 7, a risk of detention suffices.
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Applying the proper standard, I am satisfied that the respondents have shown a reviewable error. The record cannot support the Federal Court judge’s finding that barriers to advancing an asylum claim while detained give rise to a “real and not speculative” risk of refoulement from the United States.
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Respectfully said, the Federal Court judge erred by not explicitly considering these aspects of the record that undermine her finding. The record does not support her conclusion that American detention conditions pose barriers to the advancement of asylum claims that raise a real and not speculative risk of refoulement. While it is possible that barriers to advancing a claim in a third country could be so high as to create such a risk, the appellants have not demonstrated that here.
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The risks of detention upon return to the United States, as well as three aspects of detention conditions as found by the Federal Court judge — the use of medical isolation, abnormally cold conditions and deficiencies in medical care — fall within the scope of liberty and security of the person. Beyond that, to take the appellants’ position on s. 7 engagement at its highest, I am prepared to proceed on the assumption that the following effects occur and are within the scope of the s. 7 interests: the non‑accommodation of religious dietary needs, detention in a facility housing criminally convicted individuals and the risks of refoulement flowing from the one-year bar policy and the United States’ approach to gender-based claims. With these effects in mind, I turn to the causation analysis.
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With respect to gross disproportionality, the question is whether the impugned legislation’s effects on the s. 7 interests are “so grossly disproportionate to its purposes that they cannot rationally be supported” (Bedford, at para. 120). This threshold is only met “in extreme cases where the seriousness of the deprivation is totally out of sync with the objective” and is “entirely outside the norms accepted in our free and democratic society” (ibid.). Neither a risk of detention with opportunities for release and review nor a risk of medical isolation meets this high threshold. In Canada, as in the United States, these risks are within the mutually held norms accepted by our free and democratic societies. The appellants have not shown otherwise.
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In sum, even assuming that claimants face real and not speculative risks of refoulement from the United States, the Canadian legislative scheme provides safety valves that guard against such risks. For that reason, the legislative scheme implementing the Safe Third Country Agreement is not overbroad or grossly disproportionate and therefore accords with the principles of fundamental justice. In light of this conclusion, as well as my conclusions on deprivations related to detention, no breach of s. 7 of the Charter has been established.
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Given that the legislative scheme does not violate s. 7, it is not necessary to undertake a s. 1 analysis. …
The Supreme Court Act, R.S.C. 1985, c. S‑26, empowers this Court to remand any appeal or part thereof to the court appealed from or the court of original jurisdiction (s. 46.1). This discretion is to be exercised “in the interests of justice” (Wells v. Newfoundland, [1999] 3 S.C.R. 199, at para. 68; Saadati v. Moorhead, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 45; R. v. Esseghaier, 2021 SCC 9, at para. 63). Here, remitting the s. 15 challenge is just in the circumstances.
I would answer the questions posed on appeal as follows. First, s. 159.3 of the IRPR is not ultra vires. Second, s. 159.3 does not breach s. 7 of the Charter. Third, the challenge based on s. 15 of the Charter should be remitted to the Federal Court.”