Background
Canada and the United States are parties to a bilateral Safe Third Country Agreement (STCA) that generally requires refugee claimants to seek protection in whichever of the two countries they first enter. In Canadian domestic law, s. 101(1)(e) of the Immigration and Refugee Protection Act (IRPA) renders claims ineligible for consideration in Canada when a claimant arrives from a designated country; s. 159.3 of the Immigration and Refugee Protection Regulations (IRPR) designates the United States as that country. Section 102 of the IRPA conditions any such designation on the foreign country’s compliance with non-refoulement obligations under international law and requires the Governor in Council to conduct ongoing reviews of those conditions.
Several individuals who arrived at Canadian land ports of entry from the United States had their refugee claims declared ineligible under this scheme. One claimant was actually returned to the US, where she was held in solitary confinement (medical isolation) for a week pending a tuberculosis test and then detained for three more weeks in abnormally cold conditions alongside criminally convicted individuals, with her religious dietary needs unmet. The individual claimants, together with public-interest litigants including the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches, challenged s. 159.3 of the IRPR as ultra vires the IRPA, and challenged both s. 159.3 and s. 101(1)(e) as violations of ss. 7 and 15 of the Canadian Charter of Rights and Freedoms.
The Federal Court found a serious s. 7 breach — holding that returnees faced risks of refoulement and harmful detention conditions causally connected to Canadian state action — and struck down the impugned provisions. The Federal Court of Appeal reversed, concluding that the causation requirements for a Charter claim were not met because the applicants improperly targeted the legislation rather than the administrative conduct that led to their removal. The appellants sought leave to the Supreme Court of Canada.
The Court’s Holding
Writing for a unanimous eight-justice majority, Justice Kasirer allowed the appeal in part. On the ultra vires question, the Court held that the validity of a regulation is assessed as of the date of its promulgation, not on the basis of post-promulgation facts or the Governor in Council’s compliance with its s. 102(3) review obligations. Applying that standard, the appellants failed to show that the US designation exceeded the statutory authority granted by ss. 102(1)(a) and 102(2) of the IRPA when s. 159.3 was made. The s. 102(3) review obligation, while enforceable on its own terms through administrative law, does not determine whether the regulation is intra vires.
On the s. 7 Charter challenge, the Court held that the challenge was properly constituted — a claimant may target the legislative foundation of an ineligibility determination rather than the administrative conduct that implemented it — and that the STCA scheme engages liberty and security of the person. However, the Court found that not all of the alleged harms were sufficiently foreseeable as consequences of Canadian state action: cold temperatures, deficient medical care, detention with convicted offenders, and violation of dietary restrictions were not supported on the record as foreseeable results of Canada’s actions. By contrast, the risk of discretionary detention, the use of medical isolation, the US one-year bar on asylum claims, and the treatment of gender-based claims were foreseeable, and their causal connection to Canadian state action was established. Nonetheless, assessing those deprivations against the principles of fundamental justice (overbreadth and gross disproportionality), the Court concluded that the scheme does not violate s. 7. The risk of detention with meaningful opportunities for release and judicial review, and the use of medical isolation to manage public-health risks, are not fundamentally unfair and do not shock norms shared by Canada and the United States. Critically, the Court held that the IRPA’s built-in “safety valves” — administrative deferrals of removal (s. 48(2)), temporary resident permits (s. 24), and humanitarian and compassionate or public-policy exemptions (ss. 25.1, 25.2) — are sufficient, when properly interpreted and applied, to guard against real and non-speculative risks of refoulement. Because those mechanisms can intervene before any unconstitutional refoulement occurs, the scheme is neither overbroad nor grossly disproportionate, and no s. 7 breach was established.
On the s. 15 equality rights challenge — that the scheme disproportionately harms women fearing gender-based persecution — the Court declined to decide the issue for the first time at the Supreme Court level. Given the complexity of the record, conflicting affidavit evidence, and the importance of preserving a right of appeal, the Court remitted the s. 15 claim to the Federal Court for determination, criticizing the lower courts for treating equality rights as a secondary issue to be reached only after all other claims are resolved.
Key Takeaways
- The validity of a regulation is assessed at the time of its promulgation; a government’s failure to conduct ongoing statutory reviews does not render the regulation ultra vires, though it may be challenged on administrative law grounds.
- A Charter s. 7 challenge can be directed at the legislation implementing a refugee-ineligibility regime rather than at individual removal decisions, provided a sufficient causal link to Canadian state action is established — including showing that the harm was foreseeable on a balance of probabilities.
- The IRPA’s “safety valves” (deferrals of removal, temporary resident permits, humanitarian exemptions) are integral to the s. 7 fundamental-justice analysis: where they are capable of preventing unconstitutional refoulement on an individualized basis, they can cure what might otherwise be a disproportionate legislative scheme.
- Section 15 Charter claims in refugee contexts are not subordinate to s. 7 claims and must be adjudicated on their merits; the principle of judicial restraint must be balanced against the parties’ right to appeal.
Why It Matters
This decision is the Supreme Court of Canada’s most comprehensive treatment of the constitutional architecture surrounding the Safe Third Country Agreement, a treaty whose practical scope expanded significantly with the March 2023 Additional Protocol closing the informal Roxham Road entry point. By confirming that s. 159.3 of the IRPR does not breach s. 7 of the Charter — primarily because the IRPA’s safety-valve mechanisms can prevent unconstitutional refoulement — the Court preserved the legal foundation of Canada’s border-management framework with the United States, while simultaneously placing constitutional weight on the proper exercise of ministerial discretion to grant exemptions in individual cases.
The Court’s methodological contributions are equally significant for practitioners. It clarified the standard for causal connection in transborder Charter claims (Canada’s participation as a necessary precondition plus foreseeability on a balance of probabilities), articulated how curative legislative provisions factor into the principles of fundamental justice under Bedford, and reaffirmed that courts must examine the full statutory context when assessing Charter challenges to interlocking regulatory schemes. The remittal of the s. 15 claim leaves open a potentially significant equality-rights challenge that could yet affect the scheme’s long-term constitutional status.