CCLA to Appear Before Supreme Court in Safe Third Country Agreement Case

CCLA has been granted leave to intervene before the Supreme Court of Canada in a case concerning the constitutionality of the ‘Safe Third Country Agreement’ –  an agreement that designates the United States as a ‘safe’ country for refugees. As a result of this designation, almost all refugees who enter Canada over land from the United States are deemed ineligible to make a refugee claim, and are subject to deportation and imprisonment in the United States. There are also significant barriers to individuals pursuing refugee protection in the United States, making it more likely that refugee claimants will be denied protection in the US and deported to persecution and/or death.

The Federal Court found that the Safe Third Country Agreement unjustifiably infringed the right to life, liberty and security of the person as protected under s. 7 of the Charter. The Federal Court of Appeal overturned that ruling, and the case is now scheduled to be heard at the Supreme Court.

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 on litigants when faced with assertions of privilege and non-disclosure by the government party. The Court of Appeal’s ruling found that the applicants had not adduced sufficient evidence and had not done enough to challenge government assertions of privilege. This ruling, if upheld, would have significant impacts on access to justice in Canada, the manner in which Charter rights are litigated, and the practical ability of individual and public interest applicants to challenge government decision making.

You can read our leave application here, and download our full legal arguments here.

Many thanks to our pro bono litigation team Jacqueline Swaisland, Efrat Arbel and Jonathan Porter of Landings LLP, and Benjamin Liston of Legal Aid Ontario’s Refugee Law Office.