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Summary

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(Sealing order)

Charter of Rights - Immigration - Convention refugees - Whether the Regulations and the operation of the Safe Third Country Agreement between Canada and the U.S. are contrary to the ss. 7 and 15 of the Charter and are not saved by section 1- Whether the designation of the U.S. as a “safe third country” is ultra vires the Governor-in-Council - Whether the Court of Appeal erred in interpreting s. 102 of the Immigration and Refugee Protection Act (“IRPA”) as permitting the Governor-in-Council to designate a country that is not actually in compliance with international refugee conventions - Whether the Applicants have standing to bring the challenge - Whether the Court of Appeal erred in finding that the Applicants could not challenge the ongoing designation of the U.S. or rely on evidence postdating the promulgation of the Regulations - Whether the Court of Appeal erred in finding that the Governor-in-Council had conducted the continuing review required by s. 102(3) of the IRPA.

The Applicants, including John Doe, a refugee claimant from Columbia, applied for judicial review after Doe’s refugee claim in the United States failed, challenging the Safe Third Country Agreement (“STCA”) between Canada and the United States. The agreement, part of the Smart Border Declaration, deems certain foreign nationals who attempt to enter Canada at a land border from a “designated country” ineligible to make a refugee claim. John Doe came to the U.S. from Columbia in 2000 and overstayed his tourist visa, triggering a removal proceeding. He submitted an application for asylum in the U.S., alleging persecution by the Revolutionary Armed Forces of Columbia. His claim for protection was refused by a U.S. immigration judge in 2005 and the decision was upheld on appeal. He then submitted new evidence to the Board of Immigration Appeals in the U.S. that was accepted and, during the course of the litigation in the case at bar, he was granted asylum in the U.S. The Applicants sought a declaration that the designation of the United States as a “safe third country” for asylum seekers, and the resulting ineligibility for refugee protection in Canada for certain of those asylum seekers, was invalid and unlawful pursuant to administrative law principles, the Charter and international law. The Applicants claimed, inter alia, that the Regulations authorizing the STCA was invalid because the preconditions that U.S. comply with certain international conventions protecting refugees and prohibiting the return of people to places of persecution and torture were not met.

Lower Court Rulings