Update – August 21, 2020:

The Government of Canada is appealing this decision to the Federal Court of Appeal. Ultimately (like the ADCS FATCA lawsuit which is also in Canada’s Federal Court) this case is likely to find it’s way to the Supreme Court of Canada.

https://www.theglobeandmail.com/politics/article-federal-government-to-appeal-court-ruling-that-struck-down-canada-us/

In her decision, Federal Court Justice Ann Marie McDonald concluded that the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.

Detention and the consequences flowing from it are “inconsistent with the spirit and objective” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the charter, she wrote.

“The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”

The public interest parties who took part in the case immediately called on the federal government to stop sending people back to the U.S. under the agreement, and to not appeal the court decision.

In his statement, Blair said the agreement with the U.S. “remains a comprehensive vehicle” to uphold a compassionate, fair and orderly refugee protection system, based on the principle that people should claim asylum in the first safe country in which they arrive.

Introduction: So, what’s an agreement between Canada and the United States have to do with the FATCA IGAs?

Judicial recognition that the USA – a country where incarceration is almost a certainty – is simply not a safe country to return a refugee to. "Canada's asylum agreement with the U.S. infringes on Charter, says Federal Court | CBC News" https://t.co/xPkBrir87X

— U.S. Citizen Abroad (@USCitizenAbroad) July 22, 2020

Well, both the Canada US Safe Third Party Agreement and the Canada US FATCA IGA are agreements entered into between the governments of Canada and the United States. In both cases, the Federal Court of Canada has been asked to rule on whether the agreements violate Canada’s Charter of Rights. On July 22, 2019, Madam Justice MacTavish of the Federal Court Of Canada (as she then was) ruled that the FATCA IGA (and conforming legislation) did NOT violate Canada’s Charter Of Rights (discussion on Brock here). On July 22, 2020 (exactly one year later), Madam Justice McDonald of the Federal Court Of Appeal ruled that the Canada US Safe Third Party Agreement did violate Canada’s Charter Of Rights.

It is important to understand in what respect these two cases are the same in what respects they are different. This post will focus on the challenge to the Canada US Safe Third Party Agreement.

I would appreciate any thoughts/comments you might have the similarities and differences.

Understanding the Canada US Safe Third Party Agreement

The contentious loophole in a Canada-U.S. immigration border pact /via @globeandmail https://t.co/u7QJblJKW8

— U.S. Citizen Abroad (@USCitizenAbroad) July 23, 2020

The Canada US Safe Third Country Agreement says that: pic.twitter.com/oXTiVNxwnc

— U.S. Citizen Abroad (@USCitizenAbroad) July 23, 2020

Bottom Line: An individual attempting to enter Canada from the United States at official Canadian border crossings who claims “refugee status” will be returned to the United States. The Federal Court Of Canada found that to return that individual to the United States is to return that individual to a period of incarceration in the United States.

Understanding The Legal Issue: Can the Canada US Safe Third Party Agreement Attract Charter Scrutiny And If So How?

Federal Court declares Canada-U.S. refugee pact unconstitutional /via @globeandmail https://t.co/uayDML1wrd

— U.S. Citizen Abroad (@USCitizenAbroad) July 23, 2020

To be clear: This is NOT an issue surrounding Canada’s immigration and/or refugee policy. The issue is whether the specific agreement between Canada and the United States violates Canada’s Charter Of Rights. By way of analogy, the ADCS FATCA lawsuit is NOT an issue of Canada’s tax policy. The issue is whether the FATCA IGA (and conforming legislation) violates Canada’s Charter Of Rights. (I suggest that there is a clear analogy between these two cases.)

Justice McDonald of the Federal Court Of Canada, in the written judgment, introduces the issues in the following “INTRODUCTION”:

I. INTRODUCTION

[1] The Applicants challenge the validity and the constitutionality of the legislation implementing the Agreement between the Government of Canada and the Government of the United States of America For Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries (referred to as the “Safe Third Country Agreement” or “STCA”). The Applicants allege that by returning ineligible refugee claimants to the United States (US), Canada exposes them to risks in the form of detention, refoulement, and other violations of their rights contrary to the 1951 Convention Relating to the Status of Refugees, 28 July 1951, 189 UNTS at 137 (Refugee Convention or RT) and contrary to the United Nations Convention Against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (CAT, collectively referred to as the Conventions).

[2] The Safe Third Country Agreement is given effect by s. 101(1)(e) of the Immigration and Refugee Protection Act, SC 2001 c 27 (IRPA), and by s. 159.3 of the Immigration and Refugee Protection Regulations SOR/2002-227 (IRPR or the Regulations) which in 2004 designated the US a “safe third country”.

[3] The Safe Third Country Agreement operates by deeming those who arrive at a Canada land Port of Entry (POE) from the US ineligible to make a refugee claim in Canada. These ineligibility provisions apply to a narrow category of refugee claimants – only those arriving from the US at a Canada land POE. Claimants arriving from the US by air, by sea or between land POEs, are eligible to have their refugee claims referred to the Refugee Protection Division (RPD) for assessment.

[4] Each of the individual Applicants, who are citizens of El Salvador, Ethiopia, and Syria, arrived at a Canadian land POE from the US and sought refugee protection. The Applicants, ABC and her children, are from El Salvador. Their refugee claim relates to gang violence and gender-based persecution. The Applicant, Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the US. The Homsi /Al Nahass Applicants are a Muslim family from Syria who left the US following the issuance of the first travel ban by the US government.

[5] While their individual situations vary, each of the Applicants sought refugee protection in Canada fearing persecution in their home country. However, because they arrived from the US at a land POE, the Applicants were ineligible to make a refugee claim in Canada by operation of the STCA.

[6] Each of the Applicants seek judicial review of the ineligibility decisions. ABC and her daughters (DE and FG) obtained a stay of their removal from Canada pending the determination of this judicial review application. The Homsi/Al Nahass family obtained Temporary Resident Permits (TRPs). Ms. Mustefa was returned to the US where she was immediately imprisoned.

[7] The Canadian Council for Refugees (CCR), Amnesty International (AI), and, Canadian Council of Churches (CCC) were granted the right to participate in these Applications as public interest parties.

[8] The Applicants challenge the STCA on two fronts.

[9] First, they argue that the Canadian government failed in its duty to review the ongoing designation of the US as a “safe third country” as required by ss. 102 (2) and 102 (3) of the IRPA, and therefore the legislation and regulations that make the STCA law are ultra vires. They argue that the treatment of asylum-seekers in the US is not in keeping with the spirit or the objective of the STCA. For the reasons outlined below, I have concluded that the legislation enacting the STCA is not ultra vires.

[10] Second, the Applicants argue that the legislation implementing the STCA is contrary to sections 7 and 15 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982 being Schedule B to the Canada Act 1982 (UK), 1982, c 11 (Charter). For the reasons outlined below, I have concluded that the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by US authorities. I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section 7 of the Charter. I further conclude that section 1 of the Charter does not save the section 7 violations from being unconstitutional.

An excerpt from the Canadian Federal Court decision ruling that the USA is not a safe country … https://t.co/ysPrgjHMuL pic.twitter.com/gWhbu7Ngef

— U.S. Citizen Abroad (@USCitizenAbroad) July 22, 2020

I have extracted the the Section 7 reasoning from the judgment below. To what extent is the legal reasoning applicable to the ADCS lawsuit alleging that the Canada US FATCA information exchange agreement violates Canada’s Charter of Rights.

Madam Justice McDonald’s Section 7 Reasoning

This has been excerpted from the complete judgment. The complete judgement is here.

Does the STCA Violate Section 7 of the Charter?

[81] Section 7 of the Charter provides that “[e]veryone has the right to life, liberty and security of the person and the right not be deprived thereof except in accordance with the principles of fundamental justice.”

Applicants’ Submissions
[82] The Applicants argue that there is a causal connection between Canada’s adherence to the STCA and the deprivation of s. 7 rights because failed STCA applicants are imprisoned upon being returned to the US. They argue that liberty and security of the person interests are engaged because of the penalization of asylum seekers by US authorities. According to a report prepared by the UN Human Rights Council in July 2017, as referred to by Dr. Anker in her Affidavit of October 6, 2017 (para 19), the US “now operates the largest immigration detention system in the world”.

[83] Aside from the deprivation of liberty caused by detention, the fact of being detained often results in a lack of basic human dignity, lack of medical care, and lack of food. Furthermore, detention impedes the ability to retain and instruct legal counsel and increases the risk of refoulement. Anwen Hughes states that asylum seekers can be detained for months without review of their detention.

Respondents’ Submissions
[84] The Respondents argue that even if s. 7 is engaged on these facts, there are safeguards in the IRPA, ongoing monitoring of s. 102(2) factors, and discretionary remedies. They also note that there is the option to seek judicial review of CBSA decisions. Additionally, the Respondents argue that the Charter does not apply to US law or the actions of US authorities.

Analysis

(a) Section 7 – General Principles

[85] Section 7 considerations are two-fold. First, a claimant must demonstrate that the challenged law deprives her or him of the right to life, liberty or security of the person. If so, s. 7 is engaged. Once s. 7 is engaged, the claimant must demonstrate that the deprivation is not in accordance with the principles of fundamental justice (Carter v Canada (Attorney General), 2015 SCC 5, para 55 [Carter]).

[86] The principles of fundamental justice are concerned with arbitrariness, overbreadth, and gross disproportionality (Carter at para 72). “The question under s. 7 is whether anyone’s life, liberty or security of the person has been denied by a law that is inherently bad; a grossly disproportionate, over-broad, or arbitrary effect on one person is sufficient to establish a breach of s. 7.” (Canada (Attorney General) v Bedford, 2013 SCC 72 [Bedford] at para 123).

[87] As a starting point, I would note that having been physically present in Canada, the individual Applicants have the right to advance a Charter claim (Singh v Minister of Employment and Immigration, [1985] 1 SCR 177, para 35). Furthermore, the fact that Ms. Mustefa was returned to the US, does not prevent her from asserting a Charter claim (Kreishan v Canada (Citizenship and Immigration), 2019 FCA 223 para 78 [Kreishan]).

[88] In order to properly assess the s. 7 arguments, it is important to understand the process that unfolds under the STCA when a claimant arrives at a Canadian land POE and claims refugee status.

[89] In her Affidavit, Sharon Spicer, the Director of Inland Enforcement Operations and Case Management Division for the CBSA, details that process. It starts with an interview by a CBSA Examining Officer (EO) who makes an initial determination on eligibility under s. 101 of the IRPA including whether any of the STCA exceptions apply. Exceptions to the STCA are outlined in s. 101(1)(e) and include, among others, those who have immediate family who are Canadian citizens or permanent residents, and unaccompanied minors. Following this assessment, the EO prepares an admissibility report to the Minister’s Delegate (MD) under s. 44 of the IRPA outlining the grounds of inadmissibility.

[90] Ms. Spicer explains that the MD reviews this report and informs the claimant of the results. If the claimant is eligible to advance a refugee claim, the claim is referred to the Immigration and Refugee Board. If the claimant is not eligible, the MD issues an exclusion order, which has immediate effect and removal takes place as soon as possible. If the CBSA EO determines that a claimant does not fall within one of the exceptions, and is therefore ineligible because of the operation of the STCA, the Officer has no discretion to exercise.

[91] The CBSA arranges for the claimant to be returned to the US by (1) informing their US counterparts that the claimant is being returned, (2) providing a notification of return to US authorities, or (3) driving the claimant back to the US.

[92] Here, each of the individual Applicants were found to be ineligible because of the STCA. CBSA returned Ms. Mustefa to the US where she was immediately imprisoned.

(b) Engagement – Liberty
[93] The Applicants must establish that their liberty and security of the person has been or may be negatively affected or limited and that there is a sufficient causal connection between the STCA ineligibility finding and the prejudice suffered (Bedford at para 58 and 75). In Bedford at para 75 (quoting from Blencoe v British Columbia (Human Rights Commission), 2000 SCC 44) the Court noted the need for “a sufficient causal connection between the state-caused [effect] and the prejudice suffered by the [claimant]” for s. 7 to be engaged. The Court also noted that the impugned government action or law does not need to be the only or the dominant cause of the prejudice suffered by the claimant; the connection can be satisfied by a reasonable inference drawn on a balance of probabilities. This requires a real and non-speculative link between the prejudice and the legislative provisions (Bedford at para 76).

[94] The issue in relation to s. 7 is if the actions of Canadian officials in returning ineligible STCA claimants to US authorities, where they will be imprisoned, is a sufficient causal connection so as to engage liberty and security of the person interests. The evidence is clear that the most significant harm suffered is imprisonment. Additionally, there are the related harms regarding the conditions of detention and the heightened risk of refoulement.

[95] In the case of the Applicant Ms. Mustefa, upon being found ineligible she was returned to the US by CBSA officers and immediately taken into custody by US authorities. She was detained at the Clinton Correctional Facility for one month and held in solitary confinement for one week. She was released on bond on May 9, 2017.

[96] Ms. Mustfa’s imprisonment evidence is compelling. In her Affidavit she explains not knowing how long she would be detained or how long she would be kept in solitary confinement. She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.” Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons. Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds. Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions. She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day. Ms. Mustefa states that she “felt scared, alone, and confused at all times” and that she “did not know when [she] would be released, if at all.”

[97] The Anonymized Affiants H.I., L.M., N.O., P.Q., R.S., T.U., V.W., X.Y., and Z.Z., were each detained by US authorities after being refused entry to Canada as ineligible STCA claimants. In their Affidavits, the Affiants N.O., P.Q., T.U. and V.W., state that CBSA handed them directly over to US officials. In the case of the Affiant L.M., CBSA also gave her cellphone directly to US officials.

[98] There is also the affidavit evidence of lawyers who provide assistance to those detained. Ruby Robinson, Carol Anne Donahue, Ramon Irizarry and Ryan Witmer work for organizations that provide legal services to those detained following their return to the US under the STCA. Ms. Donahue notes that at the detention facility where she provides services, most are detained for two weeks to two months. Mr. Witmer notes that nearly all of the STCA returnees he has encountered have been detained for three to five weeks without bond. Mr. Witmer also states that attempts to claim refugee status in Canada can be used by US authorities as grounds to justify a large bond and ongoing detention.

[99] The lawyers describe meeting their clients in detention and their clients spending weeks in detention before getting bond hearings. In cross-examination, Anwen Hughes confirmed that the average time in detention is 31 days.

[100] Deprivations of s. 7 rights caused by actors other than our own government are still subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government’s participation and the deprivation. In this context, a sufficient causal connection is one in which “Canada’s participation is a necessary precondition” to the deprivation and “where the deprivation is an entirely foreseeable consequence of Canada’s participation” (Suresh v Canada (Minister of Citizenship and Immigration, 2002 SCC 1, at para 54 [Suresh]). Canada “does not avoid the guarantee of fundamental justice merely because the deprivation in question would be effected by someone else’s hand” (Suresh at para 54). Accordingly, the fact that STCA returnees are imprisoned by US authorities, does not immunize the actions of Canadian officials from consideration.

[101] The evidence of Sharon Spicer confirms that CBSA officials inform US officials that STCA claimants are being returned. CBSA officials are involved in the physical handing over of claimants to US officials. This conduct does not make Canada a “passive participant” and it provides a “sufficient connection” (Suresh para 55) to the offending conduct. I conclude that the actions of Canadian officials in returning ineligible STCA claimants to US officials facilitates a process that results in detention.

[102] I would also note that none of the factors regarding security or criminality as outlined in s. 101(1)(f) of IRPA were identified as being relevant with respect to any of the Applicants here when they were deemed ineligible pursuant to the STCA.

[103] Ms. Mustefa’s imprisonment is a clear illustration of the limitation on liberty flowing directly from a finding of ineligibility under s. 101(1)(e) of the IRPA. It is my conclusion, based upon the evidence, that ineligible STCA claimants are returned to the US by Canadian officials where they are immediately and automatically imprisoned by US authorities. This is sufficient to establish that s. 7 liberty rights are engaged.

(c) Engagement – Security of the Person
[104] In Singh (para 47) the Supreme Court held that “‘security of the person’ must encompass freedom from the threat of physical punishment or suffering as well as freedom from such punishment itself.” In United States v Burns, 2001 SCC 7, at para 59 [Burns], the Court found that extradition that potentially puts a life at risk deprives a person of their liberty and security of the person. Although Burns dealt with extradition and the possible application of the death penalty, it is relevant insofar as both scenarios involve the near certainty of detention which engages liberty and at times security of the person. Further, in Suresh, at para 44, the Court noted that “deportation to torture may deprive a refugee of liberty, security and perhaps life.”

[105] The Applicant ABC fears the MS-13 gang if she were forced to return, or refouled, to El Salvador. The Applicants argue that there is a real risk she would be returned to El Salvador based on the interpretation of the “particular social group” under US asylum law and the requirement that asylum seekers prove their persecutor’s motive. This they argue, is inconsistent with the Refugee Convention. The Applicants also argue that the US decision in Matter of A-B-, means that victims are unlikely to be able to prove that state protection is not reasonably available. The Applicants’ expert on the conditions in El Salvador, Elizabeth Kennedy, reports that between 2013-2015, more than 70 people who were deported to El Salvador from the US were murdered after their return.

[106] In the case of ABC, I am satisfied that the evidence supports a finding that the risk of refoulement for her is real and not speculative had she been detained in the US. I find this based upon the evidence documenting the challenges in advancing an asylum claims for those detained. There is evidence of the barriers in accessing legal advice and acquiring the necessary documents to establish an asylum claim in the US.

[107] Professor Hughes describes the difficulties faced by those who are detained including: detainees not being able to afford phone calls, people from outside the detention facility not being able to contact detainees because they cannot call them, evidence being lost due to transfers between detention centres, and detainees not having access to translators they may need to fill in the necessary forms.

[108] Mr. Witmer, a lawyer working with detainees, describes issues with “basic communication” as an impediment to the making of an asylum case. He notes that detainees are unable to leave messages with a call back number. He also notes that while many detainees are accustomed to communicating with family using email, social media and internet-based communication apps, they do not have access to these services in detention.

[109] Further, lawyer Timothy Warden-Hertz estimates that, at the detention centres his organization services, the Northwest Detention Center (NWDC), 80-85% of those detained do not have a lawyer and must represent themselves. He estimates that 75% of asylum claims from the NWDC are denied as compared to the national average of 52% of claims being denied.

[110] The use of solitary confinement, and the general conditions of detention are also factors that raise security of the person interests. Ms. Mustefa, P.Q., and R.S. were all placed in solitary confinement immediately upon arrival at US detention facilities. R.S. was left without food and was not given the opportunity to bathe for the first three days she was in solitary confinement. R.S. states that after she was able to speak to other STCA detainees she came to realize that “everyone would be placed in solitary confinement upon arriving in prison” (Affidavit of R.S. at para 32).

[111] Further, Ms. Mustefa, J.K., P.Q. and R.S. all describe the detention centres as abnormally cold. J.K. describes being unable to sleep due to the cold; P.Q. describes asking for extra blankets, but not receiving any until she had a fever and needed to see a doctor, and R.S. stated that when prisoners would huddle together for warmth, the guards would pull the blankets off them.

[112] J.K. states that she denied requiring medical attention to avoid being handcuffed. R.S. describes the medical care in her detention facility as being inadequate. R.S. observed the nurse in her detention facility ignore black detainees while going out of her way to address medical issues of white detainees. She states that the nurse would “ignore us and simply not address our concerns” (Affidavit of R.S. at para 35).

[113] These circumstances raise security of the person interests and flow directly from the actions of Canadian officials in returning claimants to the US where they are imprisoned. In this context, it is the impact of detention and not the current state of the US asylum law which raises security of the persons interests.

[114] Security of the person encompasses freedom from the threat of physical punishment or suffering (Singh at para 47); the accounts of the detainees demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.

[115] It is my finding that the evidence establishes that the conditions faced by those detained, as detailed above, engages the security of the person interest under s. 7 of the Charter.

(d) Conclusion – Engagement
[116] Having found that detention and the attendant hardship and risks that flow from detention is a limitation on liberty and security of the person within the meaning of s. 7 of the Charter, I must now determine if the limitation is in accordance with the principles of fundamental justice.

(e) Principles of Fundamental Justice
[117] In Bedford, at para 125, the Supreme Court states:

…The question under s. 7 is whether the law’s negative effect on life, liberty, or security of the person is in accordance with the principles of fundamental justice. With respect to the principles of arbitrariness, overbreadth, and gross disproportionality, the specific questions are whether the law’s purpose, taken at face value, is connected to its effects and whether the negative effect is grossly disproportionate to the law’s purpose.

[118] Although there may be “significant overlap” between the principles (arbitrariness, overbreadth, and gross disproportionality), the question is whether the law is “inadequately connected to its objective or in some sense goes too far in seeking to attain it…” (Bedford para 107). In considering these principles, the objective or purpose of the law must be identified.

[119] The Federal Court of Appeal in CCR 2008 defined the legislative objective of the STCA at para 75 as follows:

…the scheme implemented by Parliament has, as its objective, the sharing of responsibility for the consideration of refugee claims with countries that are signatory to and comply with the relevant Articles of the Conventions and have an acceptable human rights record…

[120] This is reflected in the preamble to the STCA which states:

CONSIDERING that Canada is a party to the 1951 Convention relating to the Status of Refugees….and the Protocol Relating to the Status of Refugees…that the United States is a party to the Protocol, and reaffirming their obligation to provide protection for refugees on their territory in accordance with these instruments;

ACKNOWLEDGING in particular the international legal obligations of the Parties under the principle of non-refoulement set forth in the Convention and Protocol, as well as the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment…and reaffirming their mutual obligations to promote and protect human rights and fundamental freedoms.

[121] The Respondents urge caution in relying upon the CCR 2008 articulation of the legislative objective arguing that the FCA was only addressing the vires issue. I disagree with this as it suggests that the legislative objective changes depending upon the purposes for which it is being assessed.

[122] The legislative objective of “sharing of responsibility”, provides the framework for considering whether the legislation is overbroad and disproportionate. The parties did not argue that the legislation was arbitrary.

(f) Overbroad
[123] Bedford (para 101) tells us that a law is overbroad when it goes too far and interferes with conduct that bears no connection to the objective of the law. In Carter at para 85, the Court confirmed that the focus when considering if a law if overbroad is the “impact of the measure on the individuals whose life, liberty or security of the person is trammeled.”

[124] The Applicants argue that the actions of Canadian authorities in returning STCA claimants to US authorities where they are imprisoned bears no connection to the “sharing of responsibility” objective of the STCA. This, according to the Applicants, is overbroad. They also argue that this deprivation of liberty is completely out of sync with the purpose of the STCA and therefore it is also grossly disproportional.

[125] In response, the Respondents argue that in Bedford and in Carter the impacts caused by the legislation were within Canada’s control, unlike here where the conduct complained of is outside Canada’s control. They argue that the issues raised are with the US authorities and US policies and, therefore, is outside of Canada’s control. In any event, the Respondents argue that the IRPA has safeguards to protect against overbreadth, as there are discretionary remedies available.

[126] The Respondents rely upon the cases that state that the Charter is not engaged at time of removal from Canada. Recently, in Tapambwa v Canada (Citizenship and Immigration), 2019 FCA 34 (at para 81) the Court addressed this and referenced a number of the cases relied upon by the Respondents. At para 87 in Tapambwa the Court states:

…this Court held that individuals who were barred from a full PRRA, as the appellants here, have their section 7 risks assessed at the removal stage. The manner in which section 7 risks of applicants who are PRRA-barred are assessed is a process where ‘an enforcement officer assesses the sufficiency of the evidence of risk, and if satisfied the evidence is sufficient, defers removal and refers the risk assessment to another decision-maker’ (Atawnah at para. 27). An enforcement officer’s refusal to defer removal may be challenged in the Federal Court, and a stay of removal may be obtained pending the outcome of an application for judicial review. The Federal Court can, and often does, consider a request for a stay of removal in a more comprehensive manner than an enforcement officer can consider a request for a deferral … the rights available to those being removed in the absence of the basis of any PRRA were ‘not illusory’, but real and effective.

[127] The Applicants in Tapambwa had a risk assessment by the RPD (para 77). In fact, in the cases that arise in the inadmissibility or exclusion scenarios, there has been some consideration of the claimant’s risk. That is not the case for the Applicants here, who because they are ineligible by operation of the STCA, have not had any form of risk assessment. The facts of the Applicants here are different from those in Tapambwa.

[128] I find that the cases that have held that s. 7 interests are not engaged at the removals stage are distinguishable from the facts in these Applications. Here, the Applicants have had no consideration of their risks or the substance of their refugee claim because of the STCA. They are returned to the US under the STCA based on the understanding that they will have access to a fair refugee determination process. However, the evidence demonstrates that the immediate consequence to ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada. The “sharing of responsibility” objective of the STCA should entail some guarantee of access to a fair refugee process.

[129] Additionally, Tapambwa is distinguishable on the basis that the Charter argument was hypothetical, as there was no factual basis to support the argument that the applicants faced risk upon their removal (Tapambwa at paras 77 at 90). Here, the Applicants provided the necessary factual evidence of Ms. Mustefa and others to serve as the factual basis for their Charter claim.

[130] Despite the fact that two of the Applicants had access to lawyers who were able to advance stay applications on their behalf, this should not be taken to suggest that such resources are readily available. It is clear that this was accomplished as a result of extraordinary efforts, which would not be generally available to those who arrive at a land POE. Despite the Respondents’ suggestion that there are safeguards, in my view, they are largely out of reach and are therefore “illusory”.

[131] I conclude that the STCA legislation is overbroad as the deprivation of the liberty rights of STCA returnees (their detention in the US) has no connection to the “mischief contemplated by the legislature” (sharing responsibility for refugees with a country that complies with the Conventions) (Carter at paras 85).

(g) Grossly Disproportionate
[132] In considering if a law is grossly disproportionate, the beneficial effects of the law do not factor into the analysis. Rather, the analysis balances the negative effect of the law on the individual as against the purpose of the law. A grossly disproportionate effect on one person is sufficient (Bedford, para 121-122).

[133] The Respondents argue that there are a number of protections against the grossly disproportionate impact of the STCA. First, they argue that the test is whether the impact of foreign law would “shock the conscience” (Suresh at para 18). The Respondents also point out that pursuant to Burns, at para 36, the Supreme Court of Canada confirmed that we cannot apply our Charter extraterritorially. In any event, the Respondents rely upon Suresh and Revell v Canada (Citizenship and Immigration), 2019 FCA 262 [Revell], to argue that in the removal context, the STCA is not overbroad or disproportionate in its application.

[134] As noted above, there is an important distinction between the removal cases and the facts here. Here, the Applicants have not had the merits or the substance of their refugee protection claims considered in any manner in Canada, nor have they had their risks assessed. In the “removals” cases, such as Suresh and Revell, the Courts found that there were sufficient consideration of the merits of the claims and “safety valves” to assess claims for protection. The Applicants here – ABC, DE, FG, Ms. Mustefa and the Homsi/Al-Nahass family – did not benefit from any such consideration of their claims for protection.

[135] The question is whether the evidence of the impact of the STCA demonstrates that the Charter deprivation is “out of sync” with the objectives of the legislation. Ms. Mustefa’s evidence, and the evidence of the ten anonymized affiants, establishes that imprisonment flows automatically from a finding of ineligibility under the STCA. Failed claimants are detained without regard to their circumstances, moral blameworthiness, or their actions. They are detained often without a release on bond and without a meaningful process for review of their detention. While, responsibility sharing may be a worthwhile goal, this goal must be balanced against the impact it has on the lives of those who attempt to make refugee claims in Canada and are returned to the US in the name of “administrative efficiency” (Bedford at para 121). In my view, imprisonment cannot be justified for the sake of, and in the name of, administrative efficiency.

[136] The risks of detention and loss of security of the person, which are facilitated by the STCA, are grossly disproportional to the administrative benefits of the STCA, which was intended to help Canada and the US share responsibility for refugees in a way that complies with the Refugee Convention (CCR 2008 at para 75). In my view, the impact of being found ineligible under the STCA is grossly disproportionate, and out of sync with the objective of the legislation (Bedford at para 120). Responsibility sharing cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions, solitary confinement, and the risk of refoulement. In my view, to find otherwise would be “entirely outside the norms accepted in our free and democratic society” (Bedford at para 120).

[137] Gross disproportionality can be established based upon the impact on a single person. In my view, Ms. Mustefa’s evidence alone meets this test and is sufficient to “shock the conscience”.

(h) Conclusion – Section 7

[138] The Applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the US. Although the US system has been subject to much debate and criticism, a comparison of the two systems is not the role of this Court, nor is it the role of this Court to pass judgment on the US asylum system. The narrow focus here is the consequences that flow when a refugee claimant is returned to the US by operation of the STCA. The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by US officials. In my view, the risk of detention for the sake of “administrative” compliance with the provisions of the STCA cannot be justified. Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty.

[139] The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built.

[140] For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.