CCLA at Supreme Court over Safe Third Country Agreement

Today, the CCLA is intervening in a case before the Supreme Court of Canada concerning the constitutionality of the Safe Third Country Agreement (“STCA”) –  an agreement that designates the United States as a ‘safe’ country for refugees.

Subject to a few narrow exceptions, since 2004, the STCA has allowed Canada to return refugees arriving at our land border crossings to the United States (“US”), without any hearing of their refugee claim.

The Federal Court ruled that the STCA violated the s. 7 Charter rights of refugee claimants returned to the US because of immigration detention practices there. Specifically, the Federal Court found that immigration detainees face: limited access to release from detention; serious obstacles in obtaining legal assistance; and harsh and often inhumane detention conditions (e.g. solitary confinement, freezing temperatures, inadequate and/or delayed medical care, and inadequate and/or unsafe food and water). The Federal Court of Appeal overturned that ruling, and the case is now before the Supreme Court.

The CCLA’s submissions focus on a few key issues raised by the Federal Court of Appeal’s decision: the evidentiary burden on applicants in Charter litigation, as well as the procedural requirements for litigants when faced with assertions of privilege and non-disclosure by a government party.

The Federal Court of Appeal’s ruling found that the applicants had not adduced sufficient evidence and had not adequately challenged government assertions of privilege. In so doing, it introduced novel and unnecessary procedural requirements and elevated evidentiary standards, giving rise to significant access to justice concerns.

The Supreme Court’s decision in this case will affect the manner in which Charter rights are litigated moving forward. It is our sincere hope that the Court will affirm its longstanding commitment to ensuring the pragmatic feasibility of rights-based litigation.

For a live stream of the Supreme Court of Canada hearing, click here.

You can read our leave application here: FINAL-39749-CCR-et-al-v-Canada-MCI-et-al-CCLA-Motion-Record-leave-to-intervene.pdf

Download our factum here: 39749-Factum-of-the-Intervener-Canadian-Civil-Liberties-Association-CCLA.pdf

We greatly appreciate the efforts of our pro bono litigation team Jacqueline Swaisland and Jonathan Porter of Landings LLP, Efrat Arbel at UBC and Benjamin Liston of Legal Aid Ontario’s Refugee Law Office.