Federal Court of Appeal Overturns Finding that Designation of the United States as a Safe Third Party Country Violated Section 7 of the Charter

BACKGROUND

Generally speaking, refugee claimants arriving in Canada from a country designated as a safe country under the Regulations are ineligible to claim refugee protection in Canada.  Since 2004, the United States has been designated as a safe country under the Act and Regulations following an agreement between the United States and Canada, commonly referred to as the Safe Third Country Agreement.  Annual reviews of this designation are conducted under subsection 102(3) of the Act.

The applicants brought applications for judicial review to the Federal Court alleging that the designation of the United States under section 159.3 of the Regulations as a safe country was outside the authority granted by the Act and was therefore ultra vires the Federal Government.  As well, they argued that this designation along with the resulting inability of refugee claimants to claim refugee protection in Canada under the Act, was an infringement of sections 7 and 15 of the Charter and were not justified under section 1.

The Federal Court rejected the allegation that the Regulations were ultra vires the authority granted to the Federal Government under the Act, but did find that section 159.3 of the Regulations and section 101(1)(e) of the Act breached section 7 of the Charter and were not justified under section 1.  As a result, the Federal Court declared that they were of no force or effect.  Given this conclusion, the Federal Court declined to address the section 15 issues.

The Federal Government appealed this decision to the Federal Court of Appeal and the applicants cross-appealed the issues of the Federal Court’s rejection of their ultra vires argument and the Federal Court’s refusal to address the section 15 issues.