January 17, 2022
Supreme Court To Consider Constitutional Validity Of U.S. Designation As “Safe Third Country”
On 16 December 2021, the Supreme Court granted leave to appeal to the Canadian Council for Refugees from the decision of the Federal Court of Appeal dated 15 April 2021 (2021 FCA 72). In that decision, the Federal Court of Appeal set aside the judgment of the Federal Court dated 22 July 2020 (2020 FC 770). The lower court found that the designation of the United States as a safe third country under section 159.3 of the Immigration and Refugee Protection Regulations (Regulations), and the resulting bar against claiming refugee protection applied to migrants arriving to Canada at a land port of entry from that country (pursuant to section 101(1)(e) of the Immigration and Refugee Protection Act (IRPA)), infringed the rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms. The following two questions were certified by the court:
1) Is the designation of the United States of America as a “safe third country” under paragraph 159.3 of the Immigration and Refugee Protection Regulations ultra vires [of] the Immigration and Refugee Protection Act?
2) Does the combined effect of section 101(1)(e) of the Immigration and Refugee Protection Act and paragraph 159.3 of the Immigration and Refugee Protection Regulations result in violation(s) of sections 15(1) and/or 7 of the Charter of Rights and Freedoms, and if so is/are such violation(s) justified under section 1 of the Charter?
In considering the decision of the Federal Court, the Court of Appeal explained the procedure by which the United States came to be designated as a “safe third country”, as defined by section 102(1)-(3) of the IRPA. This designation was applied in 2004 by the then Governor in Council who determined that the United States was a country: 1) that had entered into a safe third country agreement with the Government of Canada with respect to claims for refugee protection; 2) that was a signatory to both the Refugee Convention and the Convention Against Torture; 3) who’s policies and practices were consistent with their international obligations; and 4) that had a positive human rights record. As per section 102(3) of the IRPA, these designations must be continually monitored and may be revoked. This monitoring process is supported by an administrative framework that specifically described the process of review of the designation of the United States. This framework requires consideration of developments in the United States in relation to both their refugee program and human rights records.
Having review the designation process, the Federal Court of Appeal then drew the preliminary conclusion that together section 101(1)(e) of the IRPA and paragraph 159.3 of the Regulations create an “interrelated legislative scheme” (para 46). The Court of Appeal specifically determined that:
 … The two sections do not sit alone and in isolation. It is artificial to view and analyze them in the abstract, all the more so after a foreign country has been designated. After designation, subsection 102(3) reviews are to take place continually to ensure that designation remains appropriate.
 Put another way, if someone were to ask why a foreign country continued to be designated, say, in 2017 when the applications for judicial review in this case were brought, the answers are to be found not in the original designation in 2004 but in one or more subsection 102(3) reviews conducted up to that time, the failure to conduct reviews, the failure to conduct them properly or the failure to refer matters to the Governor in Council for assessment and decision, the findings and recommendations in those reviews, and the Governor in Council’s reactions or non-reactions to those findings and recommendations. For the purposes of these reasons, all these activities shall be described as “subsection 102(3) reviews and related administrative conduct”. At a higher level, one also could query whether subsection 102(3), the 2015 Order in Council, the Monitoring Framework and the reviews have been designed properly and have been working as they should.
Having drawn the above conclusions, the Federal Court of Appeal then resolved that the claims made against the Canadian Government by the Respondent in their original appeal to the Federal Court mischaracterized the legislative scheme under review. Specifically, the Respondents challenged the validity of section 101(1)(e) of the IRPA and section 159.3 of the Regulations alone and in isolation, and without reference to subsection 102 of the IRPA. The Court of Appeal determined that any Charter infringement resulting from a determination of ineligibility was not caused by the initial designation of a country as “safe” but results from the ongoing monitoring process that has allowed this designation to withstand. As such, the Respondents’ failure to challenge section 102 of the IRPA was fatal. The Court of Appeal concluded:
 … they plucked two provisions out of this complex, interrelated legislative scheme and have singled them out for attack. This was wrong. By attacking those two provisions and only those two—as if the rest of the legislative scheme and administrative conduct under that scheme does not exist—the Claimants have created a strawman and have asked us to decide on its constitutionality. This we cannot do. Courts deciding constitutional cases with big public impact do not deal with strawmen.
The Court of Appeal further determined that the evidentiary record was incomplete, piecemeal, and individualized to allow for an adjudication of the actual issues in this case. The appeal was thus allowed, and the judgment of the Federal Court was set aside.
As stated above, application for leave and judicial review of the decision of the Court of Appeal has since been granted by the Supreme Court of Canada. We look forward to providing updates to our readers on this case as it unfolds.