In a decision dated 15 APR 2021, the Federal Court of Appeal overturned the previous decision by Justice MacDonald regarding the Safe Third Country Agreement (STCA) and the constitutionality of this Agreement. This is a disappointing yet predictable decision. I have huge respect for my former professor and FCA Justice Stratus but I disagree with his reasoning. Based on communications with lawyers at the Canadian Association for Refugee Lawyers (CARL) and staff at the Canadian Council for Refugee (CCR), I expect this decision to be appealed to the Supreme Court of Canada (SCC) for final judgment.
As you may be aware, I have been outspoken on the STCA for many years. On 10 June 2017, I gave a presentation to the national CBA immigration conference in Toronto, Ontario with Officer Jurisic on behalf of Immigration, Refugee and Citizenship Canada (IRCC) and Officer Nicolaou on behalf of Canada Border Services Agency (CBSA). Since 2016, I have also given interviews on CBC News, Global News, CTV News, The Toronto Star and many other news organizations on the constitutional and legal issues with the STCA.
Based on the extensive and objective evidence presented to Justice MacDonald at Federal Court, I agree with her analysis that the USA fails to meet its international obligations for asylum seekers. I agree with her conclusion that the legislative scheme per Canadian law fails to offer sufficient protection to individuals who are seeking to enter Canada from the USA and access the Immigration and Refugee Board (IRB-RPD) for a proper and fair hearing.
Justice Stratas’ decision has been published on the FCA website and the full decision can be found online. His three (3) main points are these:
- The Claimants could have challenged the review process in IRPA and they did not;
- The Claimants could have asked for judicial review of the Officer’s decision or filed mandamus applications to Federal Court instead and they did not; and.
- The Claimants could have used certiorari procedures to challenge the administrative decisions and they did not.
In my view, this first point is valid and I have been very critical of the Government of Canada’s failure to follow the mandatory review process in IRPA. They have repeatedly failed to adhere to these provisions in IRPA. These review provisions are in the law and Justice Stratas is correct that the government has failed to meet its legal obligations per the review process.
I will not comment on points #2 and #3 at the moment as I am preparing a detailed analysis of those issues.
My main critique of the FCA decision is that it fails to sufficiently consider the blatant violations of international law. I agree with another former professor Sharry Aiken:
“The court didn’t find that conditions in detention were acceptable — what they said was that there is an effective safety valve. But the evidence brought forward in these cases was that the safety valve isn’t working,” she said. “The court was not wrong that in theory the review process could have been part of the challenge, but doing so would have mired the case in years of litigation about privilege because the government has said the process is privileged information, and in the meantime real people are suffering. So, it was the expert opinion of those who advised on the case, including many administrative law scholars, that that pathway would have been not feasible in the circumstances.”
In other words, it is true that the claimants could have argued different points of law, as identified by FCA Justice Stratas; however, the fact that they focused on other points, and their arguments held up at Federal Court, means that those points should have been the focus of the FCA decision. Those were the points in the underlying decision.
Politics is the other side of this issue. The Federal Court of Canada decision re STCA was made with the Trump Administration as the backdrop. Under that administration, the violations of human rights law and international law were blatant and indefensible. Now, under the Biden Administration, it seems that relations between Canada and the USA may warm up and we may not see as many clear violations south of the border.
In my view, the FCA decision should be appealed to the SCC for final determination on the future of the STCA. I would urge the Trudeau government to take the comments of Justice MacDonald seriously. The current system should be reviewed and we should not take the past assumptions for granted. By allowing human rights violations in the USA and not allowing those refugee claimants access to the Canadian refugee determination system, Canadians are complicit in the abuse.