Ottawa, ON (unceded Algonquin Anishnaabeg Territory) – The BC Civil Liberties Association (BCCLA) is disappointed by today’s Supreme Court of Canada’s (SCC) decision in Canadian Council for Refugees, et al. v Minister of Citizenship and Immigration, et al., 2023 SCC 17. This challenge pertained to the designation of the United States as a “safe third country” for refugees, permitting Canada to return to the United States all refugee claimants entering land borders from the US. The SCC unanimously found that while the designation engages refugees’ s. 7 interests due to issues with United States immigration detention, these rights are not violated due to safety valves in the legislation which may be available to individual refugees.
The BCCLA is heartened that the SCC agreed with our argument that Charter rights apply where a casual connection exists between Canada’s actions and events occurring outside of Canada. The SCC also concurred with the BCCLA’s arguments on intervention concerning the test for the principles of fundamental justice and reaffirmed the correct legal test.
However, the BCCLA is disappointed that many impacts on refugee rights were not adequately considered by the court. The BCCLA disagrees with the finding that the United States refugee process is not fundamentally unfair. It is contrary to Canada’s legal obligations that the United States obstructs or delays claimants’ access to the refugee process and punitively imposes detention or criminally prosecutes refugees who have entered the contrary illegally. The Canadian safety valves relied upon by the court are, in practice, exceptional, highly discretionary, and largely inaccessible to refugee claimants.
“While we disagree with the Supreme Court of Canada’s conclusion that the impugned scheme is neither overbroad nor grossly disproportionate, we welcome its finding that refugee claimants’ s 7 interests are engaged by the risk of detention upon return to the United States – an entirely foreseeable consequence of the actions of Canadian officials. We are especially pleased to see the Court’s rejection of the ‘shocks the conscience’ standard as applicable to Charter challenges to legislation, and its affirmation that the established principles of fundamental justice apply notwithstanding that the deprivation is effected by a foreign state. It is essential that the test is not diluted in the international context just because the interference with individuals’ liberty and security of the person is happening elsewhere.” – Adriel Weaver, Pro Bono Counsel for the BCCLA
“While we have made victories in the law, the reality is that the United States is not a safe country for so many groups seeking safety, and it does not offer fair, accessible due process. The BCCLA will continue to fight alongside refugees and against immigration detention. We hope that the Federal Court will seriously appreciate the impacts on gender equality in the newly ordered hearing on this issue.” – Ga Grant, BCCLA Litigation Staff Counsel
The BCCLA is represented by Jessica Orkin and Adriel Weaver.
