(OTTAWA) The Safe Third Country Agreement is constitutional and does not violate the Canadian Charter of Rights and Freedoms, the Supreme Court of Canada ruled Friday.
“Despite the factual determinations of the Federal Court judge that section 7 rights [de la Charte canadienne des droits et libertés] are at stake, the challenge of article 159.3 of the IRPR [Règlement sur l’immigration et la protection des réfugiés] ultimately ends in failure,” reads the unanimous decision signed by Judge Nicholas Kasirer.
Because “even where inadmissibility under the legislative scheme would cause deprivations of liberty or security of the person — as the Federal Court judge concluded — the discretionary exemptions provided by the legislative scheme ensure respect principles of fundamental justice,” argues the magistrate.
The statutory scheme, he continues, “is designed to prevent certain violations of section 7 rights and, importantly for the purposes of this case, it resists constitutional review in this case because safety valves of legislative origin provide for curative measures”.
The appellants in this case were nationals of El Salvador, Syria and Ethiopia who were deported to the United States after entering Canada through an official border crossing – so points of deportation are not discussed here. unofficial entrance, such as Roxham Road.
They argued, along with groups like the Canadian Council for Refugees and Amnesty International, that the pushbacks violated section 7 of the Canadian Charter of Rights and Freedoms guaranteeing “the right to life, liberty and security”. , as migrants run the risk of being detained in the United States or deported to the country of origin from which they fled.
The Federal Court agreed with them in a judgment rendered in July 2020.
But in ruling that “the safeguards provided by the scheme were ‘illusory,'” federal judge Ann Marie McDonald failed to take into account “all relevant safety valves”, and “that omission was an error of law”, writes Judge Kasirer about this decision.
“His conclusion that the designation of the United States for the application of the Safe Third Country Agreement violated Article 7 “cannot be maintained”, thus decides the highest court in the country.
The trial court’s decision was overturned in April 2021 by the Federal Court of Appeal.
The Federal Court invited to rule
Judge Kasirer also adds, on behalf of his colleagues – the resigning judge Russell Brown took part in the hearings, but “did not participate in the final operative part of the judgment”, it is specified – that the challenge based on the Section 15 of the Charter, which none of the courts below ruled on, should be sent back to the Federal Court.
“This action is based on the argument that the legislative scheme harms women who fear persecution because of their gender. Given the seriousness of the case, the size and complexity of the case, and the conflicting affidavits, it would be imprudent for the Court to rule on an equality rights claim as a court of first case […] “, notes the magistrate.