Canadian Council for Refugees, Amnesty International, Canadian Council of Churches, ABC, DE by her litigation guardian ABC, FG by her litigation guardian ABC, Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi, Reda Yassin Al Nahass v. Nedira Jemal Mustefa, 2023 SCC 17

SUPREME COURT OF CANADA Citation: Canadian Council for Refugees v.

Canada (Citizenship and Immigration), 2023 SCC 17 Appeal Heard: October 6, 2022 Judgment Rendered: June 16, 2023 Docket: 39749 Between: Canadian Council for Refugees, Amnesty International, Canadian Council of Churches, ABC, DE by her litigation guardian ABC, FG by her litigation guardian ABC, Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi, Reda Yassin Al Nahass and Nedira Jemal Mustefa Appellants and Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness Respondents - and - Association québécoise des avocats et avocates en droit de l’immigration, Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, National Council of Canadian Muslims, Canadian Muslim Lawyers Association, Canadian Lawyers for International Human Rights, Canadian Centre for Victims of Torture, Queen’s Prison Law Clinic, Rainbow Refugee Society, British Columbia Civil Liberties Association, Advocates for the Rule of Law, David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund Association, Women’s Legal Education and Action Fund Inc., HIV & AIDS Legal Clinic Ontario and Rainbow Railroad Interveners Coram: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ.

Reasons for Judgment: (paras. 1 to 184) Kasirer J. (Wagner C.J. and Karakatsanis, Côté, Rowe, Martin, Jamal and O’Bonsawin JJ. concurring) Note: This document is subject to editorial revision before its reproduction in final form in the Canada Supreme Court Reports .

* Brown J. did not participate in the final disposition of the judgment. Canadian Council for Refugees, Amnesty International, Canadian Council of Churches, ABC, DE by her litigation guardian ABC, FG by her litigation guardian ABC, Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi, Reda Yassin Al Nahass and Nedira Jemal Mustefa Appellants v.

Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness Respondents and Association québécoise des avocats et avocates en droit de l’immigration, Canadian Civil Liberties Association, Canadian Association of Refugee Lawyers, National Council of Canadian Muslims, Canadian Muslim Lawyers Association, Canadian Lawyers for International Human Rights, Canadian Centre for Victims of Torture, Queen’s Prison Law Clinic, Rainbow Refugee Society, British Columbia Civil Liberties Association, Advocates for the Rule of Law, David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund Association, Women’s Legal Education and Action Fund Inc., HIV & AIDS Legal Clinic Ontario and Rainbow Railroad Interveners

Indexed as: Canadian Council for Refugees v. Canada ( Citizenship and Immigration) 2023 SCC 17 File No.: 39749. 2022: October 6; 2023: June 16.

Present: Wagner C.J. and Karakatsanis, Côté, Brown, * Rowe, Martin, Kasirer, Jamal and O’Bonsawin JJ. on appeal from the federal court of appeal Constitutional law — Charter of Rights — Right to life, liberty and security of person — Fundamental justice — Refugee status claims of foreign nationals arriving at Canadian land ports of entry from United States ineligible to be considered in Canada pursuant to Safe Third Country Agreement — Whether provision in federal immigration and refugee protection regulations designating United States as safe third country infringes refugee claimants’ right to liberty and security of person — Canadian Charter of Rights and Freedoms, s. 7 — Immigration and Refugee Protection Act, S.C. 2001, c. 27, s. 101(1) (e) — Immigration and Refugee Protection Regulations, SOR/2002-227, s. 159.3 — Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries, Can.

T.S. 2004 No. 2. Immigration — Refugee protection — Ineligibility — Refugee status claims of foreign nationals arriving at Canadian land ports of entry from United States ineligible to be considered in Canada pursuant to Safe Third Country Agreement — Whether provision in federal immigration and refugee protection regulations designating United States as safe third country is ultra vires enabling statute — Immigration and Refugee Protection Act, S.C. 2001 c. 27, s. 101(1) (e) — Immigration and Refugee Protection Regulations, SOR/2002-227, s. 159.3 .

Canada and the United States are parties to a bilateral treaty commonly known as the “ Safe Third Country Agreement ” designed to enhance their sharing of responsibility for considering refugee status claims. In essence, the treaty provides that refugee claimants must, as a general rule, seek protection in whichever of the two countries they first enter after leaving their country of origin. The Safe Third Country Agreement is given effect in Canadian domestic law through the Immigration and Refugee Protection Act (“ IRPA ”) and its regulations (“ IRPR ”). Under s. 101(1)(

e) of the IRPA , refugee status claims are ineligible to be considered in Canada if the claimant came from a country designated by the IRPR . Section 102(1) (

a) of the IRPA provides that countries may only be so designated if they are viewed as complying with their non-refoulement obligations under international law, which prohibit directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment. Section 102(2) lists factors for the Governor in Council to consider in designating a country, and s. 102(3) creates an obligation for the Governor in Council to ensure the continuing review of those factors with respect to each designated country.

The United States is designated under s. 159.3 of the IRPR . Several individuals arrived from the United States to claim refugee protection in Canada. Their claims were ineligible to be referred to the Refugee Protection Division, pursuant to s. 101(1)(

e) of the IRPA and s. 159.3 of the IRPR . However, most of the individuals were not returned to the United States, as they had obtained a stay of removal or temporary resident permit. One individual was returned to the United States. That individual says American officials detained her in solitary confinement for a week pending the results of a tuberculosis test and then detained her for another three weeks in an abnormally cold facility, where individuals convicted of criminal offences were present and where her religious dietary restrictions were not respected.

The individuals whose claims were ineligible to be referred to the Refugee Protection Division, along with public interest litigants (collectively, the “applicants”), challenged the validity of s. 159.3 of the IRPR on the basis that the designation of the United States was outside the authority granted by the IRPA because of post-promulgation constraints on the Governor in Council’s statutory authority to maintain a designation. They also argued that s. 159.3 of the IRPR and s. 101(1) (

e) of the IRPA violated the rights guaranteed by ss. 7 and 15 of the Charter , asserting that the legislative scheme results in Canadian immigration officers summarily returning claimants to the United States without considering whether that country will respect their rights under international law, including those related to detention and non-refoulement . The Federal Court judge rejected the ultra vires argument because whether a regulation is within the authority delegated by a statute is assessed based on facts at the time of promulgation.

With respect to s. 7 of the Charter , she found the alleged violations were largely substantiated and most grave, and that deprivations of liberty and security of the person for refugee claimants arose because those returned to the United States faced risks of refoulement as well as other harm relating to immigration detention. She concluded that s. 7 was violated and that this breach was not justified under s. 1, and she therefore declined to rule on the s. 15 claim. She declared s. 101(1) (

e) of the IRPA and s. 159.3 of the IRPR of no force or effect pursuant to s. 52 of the Constitution Act, 1982 . The Court of Appeal allowed the appeal brought by the ministers, dismissed the cross-appeal of the s. 15 claim and the ultra vires argument, and set aside the judgment of the Federal Court. The basis for these conclusions was that the causation requirements for a Charter claim were not met because the applicants improperly targeted the legislation rather than administrative conduct. Held : The appeal should be allowed in part.

Section 159.3 of the IRPR is not ultra vires , nor does it breach s. 7 of the Charter . However, the challenge based on s. 15 of the Charter , which was not decided by either court below, should be remitted to the Federal Court. The applicants’ submission that s. 159.3 of the IRPR is ultra vires the IRPA should be rejected. Regulations derive their validity from the statute that creates the power to promulgate a regulation, and not from the executive body by which they are made. The limits imposed by the enabling statute are therefore fundamental to determining whether a regulation is intra vires that statute. In the instant case, s. 102(1) (

a) and (2) of the IRPA establishes conditions precedent to designation for the purposes of s. 101(1)(e); these conditions must be met before, not after, a country is designated. While s. 102(3) creates an obligation for the Governor in Council to ensure the continuing review of the s. 102(2) factors, these reviews are not directed at whether the regulation exceeds the limits imposed

by the statute. The s. 102(3) reviews are thus outside the scope of a challenge alleging that s. 159.3 of the IRPR is ultra vires the IRPA , although they may well be subject to other forms of challenge based on administrative law principles. Whether or not the impugned regulation is intra vires its enabling statute must be examined at the time of promulgation. Regulations benefit from a presumption of validity. The applicants have not shown that on the date of promulgation, the designation of the United States was not authorized by s. 102(1) (

a) or (2) of the IRPA . The applicants’ s. 7 Charter challenge was properly constituted. The s. 159.3 designation is the legislative basis for the relevant ineligibility determinations and is thus properly subject to constitutional scrutiny. To succeed, a Charter claim must show a causal link between state action and the violation of the relevant right or freedom; a sufficient causal connection must be established, which does not require that the impugned state action be the only or the dominant cause of the prejudice suffered by the claimant.

As a result, the mere fact that other forms of state action may also have a causal connection to the harms alleged does not mean that a challenge to legislation is improperly constituted. Furthermore, Charter challenges need not target provisions that might have served to prevent or cure the harms alleged when the provision of general application to which those other provisions relate is a cause of the mischief. But when a Charter challenge targets a provision in an interrelated legislative scheme, the potential impact of related provisions, including preventative or curative measures, must be reviewed.

Courts must consider legislative provisions in their entire statutory context, irrespective of how the parties frame their challenge of a legislative scheme. In the instant case, preventative and curative provisions are both relevant in different ways to the applicants’ Charter claim; however, they did not need to target these provisions in addition to s. 159.3 of the IRPR to constitute their challenge.

It was also open to the applicants to challenge s. 159.3 of the IRPR rather than administrative conduct, such as s. 102(3) reviews, and seek a declaration that the provision is of no force or effect because it is inconsistent with the Charter . The s. 102(3) reviews do not play a curative role, as they do not make after-the-fact relief available on an individual basis. They are also distinct from targeted preventative measures, which preclude the application of a general rule, often through legislative exceptions.

While the administrative conduct that led to the designation being maintained may also be susceptible to constitutional challenge in its own right, the existence of this alternative does not insulate s. 159.3 of the IRPR from Charter scrutiny. Similarly, while the applicants might have challenged administrative decisions pertaining to the applicability of exceptions or the availability of exemptions, this does not preclude challenges to s. 159.3. The first stage of the s. 7 analysis makes clear that s. 159.3 engages liberty and security of the person.

Assessing the constitutional implications of effects that materialize in other countries does not amount to applying the Charter to foreign governments. The challenge in the instant case is directed at the legislative scheme, which is undoubtedly state action that attracts Charter scrutiny. Whether an alleged effect of the scheme exists is a question of fact, for which the standard of review is palpable and overriding error, while the scope of a s. 7 interest is a question of law, for which the standard of review is correctness.

Although t he evidence does not support the Federal Court judge’s finding that returnees face automatic detention in the United States, the risks of detention upon return to the United States, as well as three aspects of detention conditions as found by the Federal Court judge — the use of medical isolation, abnormally cold conditions and deficiencies in medical care — fall within the scope of liberty and security of the person.

In addition, taking the applicants’ position on s. 7 engagement at its highest, it can be assumed that the following effects occur and are within the scope of the s. 7 interests: the non-accommodation of religious dietary needs, detention in a facility housing criminally convicted individuals and risks of refoulement flowing from the one-year bar policy and the United States’ approach to gender-based claims. To establish s. 7 engagement, challengers must not only demonstrate effects falling within the scope of the s. 7 interests, but also that these effects are caused by Canadian state action.

As Canada has no jurisdiction to dictate the actions of foreign authorities, drawing a causal connection to Canadian state action requires showing that Canadian authorities were implicated in how the harms arose. Accordingly, challengers will succeed in drawing a causal connection to Canadian state action at least where Canada’s participation is a necessary precondition for the deprivation. Further, as Canada cannot foresee all the actions that foreign authorities will take, it must be shown that Canadian authorities knew, or ought to have known, that the harms could arise as a result of Canada’s actions.

This foreseeability threshold can be established by a reasonable inference, drawn on a balance of probabilities. What is required is a sufficient connection, having regard to the context of the case. Here, it is clear that the relevant Canadian state action — s. 159.3 of the IRPR along with the broader legislative scheme — is a necessary precondition to each of the proven or presumed effects related to detention and refoulement .

Without the Safe Third Country Agreement regime, individuals could advance their refugee protection claims in Canada; instead, they are sent back to the United States by Canadian officials acting under legislative authority, where they face (or are presumed to face) these effects. However, the Federal Court judge erred in her application of the foreseeability standard established by the Court in Suresh v. Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3, and explained in Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101 .

With respect to the cold temperatures in detention facilities, deficiencies in medical care, detention alongside criminally convicted individuals and the violation of religious dietary restrictions, the record does not support a finding that these effects were a foreseeable consequence of Canada’s actions. By contrast, the record substantiates that the other negative effects were entirely foreseeable, such as the risk of detention, the “one-year bar”, the treatment of gender-based claim and the widespread practice of medical isolation.

These infringements of liberty and security of the person are causally connected to Canadian state action and must be assessed in relation to the principles of fundamental justice. The applicable principles of fundamental justice in the instant case are overbreadth and gross disproportionality as described by the Court in Bedford . The “shocks the conscience” standard may well be relevant to the review of individualized decisions, but it is not relevant to Charter challenges to legislation; it is therefore not the appropriate measure here.

When assessing whether legislation violates the Bedford principles of fundamental justice, courts must identify the legislative purpose and then assess if, in light of that purpose, the legislation breached any of the relevant principles. When a legislative objective is at issue as part of the s. 7 analysis, the focus is the purpose of the impugned provisions, although the broader legislative scheme may provide clues as to the narrower provisions’ purpose.

Here, taken together, the statement of objectives of the IRPA , the text, context, and scheme of the legislation, and the extrinsic evidence suggest that the purpose of s. 159.3 of the IRPR is to share responsibility for fairly considering refugee claims with the United States, in accordance with the principle of non-refoulement . It is in light of this purpose that the relevant s. 7 deprivations — the risk of discretionary detention and medical isolation, along with the presumed risks of refoulement — must be assessed for overbreadth and gross disproportionality.

The impugned legislative scheme in the instant case is not overbroad or grossly disproportionate. With respect to

overbreadth, the question is whether the scheme is so broad in scope that it includes some conduct that bears no relation to its purpose.The analysis is focused not on whether Parliament has chosen the least restrictive means, but whether the chosen means infringe life,liberty or security of the person in a way that has no connection with the mischief contemplated by the legislature. The risk of detentionin the United States, with opportunities for release and review, is related to the legislative objective.

Sharing responsibility for refugeeclaims with another state will necessarily expose returnees to the foreign legal regime that governs refugee claimants’ presence in thatcountry. A degree of difference as between the legal schemes applicable in the two countries can be tolerated, so long as the Americansystem is not fundamentally unfair. While the record shows that returnees face a risk of detention in the United States, it also disclosesmechanisms that create opportunities for release and provide for review by administrative decision makers and courts.

There is no basisto infer that these arrangements are fundamentally unfair, and thus the risk of detention that returnees face is not overbroad. Similarly,the use of medical isolation to control public health risks is not fundamentally unfair. The applicants do not point to evidence that wouldsustain an inference that medical isolation is being used improperly in the American immigration detention system. With respect to grossdisproportionality, the question is whether the impugned legislation’s effects on the s. 7 interests are so grossly disproportionate to itspurposes that they cannot rationally be supported.

Neither a risk of detention with opportunities for release and review nor a risk ofmedical isolation meets this high threshold. In Canada, as in the United States, these risks are within the mutually held norms acceptedby our free and democratic societies. A provision mandating return to a real and not speculative risk of refoulement, however, would be overbroad as it wouldbear no relation to the purpose of the impugned legislation, which has respect for the non-refoulement principle at its core.

Such aprovision would similarly be grossly disproportionate because it would, by definition, expose individuals to risks to their life or freedom,torture or other fundamental human rights violations. However, the impugned legislation in the instant case does not simply mandatereturn: there are also related curative provisions that must be factored into the analysis, including administrative deferrals of removal(IRPA, s. 48(2)), temporary resident permits (s. 24), humanitarian and compassionate exemptions (s. 25.1(1)) and public policyexemptions (s. 25.2(1)).

When the impugned legislative scheme contains safety valves, the question is whether these mechanisms —properly interpreted and applied — are sufficient to ensure that no deprivations contrary to the principles of fundamental justice occur.When the IRPA’s safety valves are activated, claimants can be exempted from return. If they are not returned to the United States, theydo not face any risk of refoulement from the United States. The safety valves can therefore intervene to cure what might otherwise beunconstitutional effects.

Moreover, these mechanisms are properly considered within the principles of fundamental justice stage of s. 7because they can be exercised in order to address the specific deprivation at issue, in this case the risk of refoulement. Properlyinterpreted, these mechanisms in the broader statutory scheme are sufficient to ensure that individuals are not subjected to real and notspeculative risks of refoulement, if such risks do exist. These mechanisms must be understood in light of the discretion that

Article 6 ofthe Safe Third Country Agreement preserves for Canada to consider claims when it is in its public interest to do so. The mere fact that themechanisms predate the treaty does not make them irrelevant; when the agreement was signed, Canadian domestic law already includedprovisions that could facilitate individualized consideration of claimants’ circumstances. Thus, even assuming that claimants face realand not speculative risks of refoulement from the United States, the Canadian legislative scheme provides safety valves that guard againstsuch risks.

For that reason, the legislative scheme implementing the Safe Third Country Agreement is not overbroad or grosslydisproportionate and therefore accords with the principles of fundamental justice. Consequently, no breach of s. 7 of the Charter hasbeen established, and it is not necessary to undertake a s. 1 analysis. The challenge based on s. 15 of the Charter should be sent back to the Federal Court for determination. The basis of thisclaim is that women fearing gender-based persecution are adversely affected by the legislative scheme.

Given the profound seriousnessof the matter, the size and complexity of the record and the conflicting affidavit evidence, it would be imprudent for the Court to disposeof the equality rights claim as would a court of first instance and thus leave the losing party with no avenue of appeal. While the FederalCourt judge should not be faulted for exercising judicial restraint and not deciding the s. 15 claim, a false economy has arisen due to theneed to remit these issues.

The principle of judicial policy underlying restraint in constitutional cases is sound, but it must be weighedagainst other factors, such as the possibility of an appeal and fairness to the parties. Claims based on s. 15 are not secondary issues onlyto be reached after all other issues are considered. The Charter should not be treated as if it establishes a hierarchy of rights in whichs. 15 occupies a lower tier. Cases Cited Applied: Canada (Attorney General) v. Bedford, 2013 SCC 72, [2013] 3 S.C.R. 1101; Canada (Attorney General) v. PHSCommunity Services Society, 2011 SCC 44, [2011] 3 S.C.R. 134; Suresh v.

Canada (Minister of Citizenship and Immigration), 2002SCC 1, [2002] 1 S.C.R. 3; considered: Febles v. Canada (Citizenship and Immigration), 2014 SCC 68, [2014] 3 S.C.R. 431; CanadianCouncil for Refugees v. Canada, 2008 FCA 229, [2009] 3 F.C.R. 136; B010 v. Canada (Citizenship and Immigration), 2015 SCC 58,[2015] 3 S.C.R. 704; referred to: Tapambwa v. Canada (Citizenship and Immigration), 2019 FCA 34, [2020] 1 F.C.R. 700; Carter v.Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331; Little Sisters Book and Art Emporium v.

Canada (Minister of Justice),2000 SCC 69, [2000] 2 S.C.R. 1120; National Corn Growers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2S.C.R. 1324; Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176; Atawnah v. Canada (Public Safety andEmergency Preparedness), 2016 FCA 144, [2017] 1 F.C.R. 153; Revell v. Canada (Citizenship and Immigration), 2019 FCA 262, [2020]2 F.C.R. 355; Kanthasamy v.

Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Reference as to the Validity ofthe Regulations in relation to Chemicals, (SCC), [1943] S.C.R. 1; The Zamora, [1916] 2 A.C. 77; Katz Group CanadaInc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810; R. v. Malmo-Levine, 2003 SCC 74, [2003] 3 S.C.R.571; Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441; R. v. Parker (2000), (ONCA), 49 O.R. (3d) 481; United States of America v. Cobb, 2001 SCC 19, [2001] 1 S.C.R. 587; Canada (Minister of Citizenship andImmigration) v.

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Section 7 of the Canadian Charter of Rights and Freedoms , 2nd ed. Toronto: Irwin Law, 2019. United Nations High Commissioner for Refugees. Guidelines on the Applicable Criteria and Standards relating to the Detention of Asylum-Seekers and Alternatives to Detention , Geneva, 2012. United Nations High Commissioner for Refugees. Monitoring Report: Canada-United States “Safe Third Country” Agreement . Ottawa, 2006. United Nations High Commissioner for Refugees.

UNHCR Comments on the Draft Agreement between Canada and the United States of America for “Cooperation in the Examination of Refugee Status Claims from Nationals of Third Countries” , July 26, 2002 (online: https://www.refworld.org/docid/3d4e69614.html; archived version : https://www.scc-csc.ca/cso-dce/2023SCC-CSC17_3_eng.pdf ). United Nations. Office of the High Commissioner for Human Rights.

The principle of non-refoulement under international human rights law , July 5, 2018 (online: https://www.ohchr.org/sites/default/files/Documents/Issues/Migration/GlobalCompactMigration/ThePrincipleNon- RefoulementUnderInternationalHumanRightsLaw.pdf ). van Ert, Gib. Using International Law in Canadian Courts , 2nd ed. Toronto: Irwin Law, 2008. APPEAL from a judgment of the Federal Court of Appeal (Noël C.J. and Stratas and Laskin JJ.A.), 2021 FCA 72 , [2021] 3 F.C.R. 294, 458 D.L.R. (4th) 125, 489 C.R.R. (2d) 276, 79 Imm. L.R. (4th) 1, [2021] F.C.J.

No. 322 (QL), 2021 CarswellNat 1003 (WL), setting aside a decision of McDonald J., 2020 FC 770 , [2021] 1 F.C.R. 209, 448 D.L.R. (4th) 132, 75 Imm. L.R. (4th) 246, [2020] F.C.J. No. 795 (QL), 2020 CarswellNat 2684 (WL). Appeal allowed in part. Andrew J. Brouwer and Leigh Salsberg , for the appellants the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches. Prasanna Balasundaram , for the appellants ABC, DE by her litigation guardian ABC, FG by her litigation guardian ABC, and Nedira Jemal Mustefa.

Jared Will , for the appellants Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Yassin Al Nahass. Marianne Zoric and Ian Demers , for the respondents. Guillaume Cliche-Rivard , for the intervener Association québécoise des avocats et avocates en droit de l’immigration. Jacqueline Swaisland , Benjamin Liston , Efrat Arbel and Jonathan Porter , for the intervener the Canadian Civil Liberties Association. Written submissions only by Maureen Silcoff and Adam Bercovitch Sadinsky , for the intervener the Canadian Association of Refugee Lawyers.

Naseem Mithoowani , Nusaiba Al-Azem and Daniel Kuhlen , for the interveners the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association.

Written submissions only by Lorne Waldman and Steven Blakey , for the interveners the Canadian Lawyers for International Human Rights and the Canadian Centre for Victims of Torture. Alison M. Latimer , K.C. , for the intervener the Queen’s Prison Law Clinic. Frances Mahon and Yalda Kazemi , for the intervener the Rainbow Refugee Society. Adriel Weaver and Jessica Orkin , for the intervener the British Columbia Civil Liberties Association. Connor Bildfell and Asher Honickman , for the intervener the Advocates for the Rule of Law.

Cheryl Milne and Jamie Liew , for the interveners the David Asper Centre for Constitutional Rights, the West Coast Legal Education and Action Fund Association and the Women’s Legal Education and Action Fund Inc. Written submissions only by Ewa Krajewska and Meghan Pearson , for the intervener the HIV & AIDS Legal Clinic Ontario. Michael Battista and Adrienne Smith , for the intervener the Rainbow Railroad. The judgment of the Court was delivered by Kasirer J. — TABLE OF CONTENTS Paragraph I. Overview 1 II. The Parties 14 III. Proceedings Below 20 A.

Federal Court, 2020 FC 770 , [2021] 1 F.C.R. 209 (McDonald J.) 20 B. Federal Court of Appeal, 2021 FCA 72 , [2021] 3 F.C.R. 294 (Noël C.J. and Stratas and Laskin JJ.A.) 26 IV. Issues 30 V. Statutory and Regulatory Scheme and Context 31 A. Safe Third Country Agreement 32 B. Domestic Implementation of the Safe Third Country Agreement 37

(1) Designation and Review Mechanisms 38

(2) Limits to the General Ineligibility Rule 41

(3) Exemptions From the Application of the General Ineligibility Rule 43 VI. Administrative Law Issues 49 VII. The

Section 7 Claim 56 A. Properly Constituting a

Section 7 Challenge 59

(1) The Relevance of Preventative and Curative Measures to the

Section 7 Challenge 62

(2) The Relevance of Associated Administrative Conduct to the

Section 7 Challenge 79 B. Engagement of

Section 7 Interests 83

(1) Effects Implicating

Section 7 Interests 85 (

a) Detention in the United States 86 (

b) Conditions While Detained in the United States 90 (

c) Risks of Refoulement From the United States 95 (

i) Refoulement Because of Barriers Caused by Detention Conditions 97 (ii) Refoulement Due to American Asylum Policies 103 (

d) Conclusion as to the Effects Implicating

Section 7 Interests 108

(2) Causal Link to Canadian State Action 109 (

a) Necessary Precondition 112 (

b) Foreseeable Consequence 113 C. Principles of Fundamental Justice Analysis 118

(1) The Applicable Principles 118

(2) The Scheme Is Not Overbroad or Grossly Disproportionate 126 (

a) Legislative Purpose 128 (

b) Risks of Detention and Medical Isolation 140 (

c) Risks of Refoulement Due to American Asylum Policies 148 D.

Section 1 165 VIII. The

Section 15 Claim 172 A. The Parties’ Positions on the

Section 15 Challenge 172 B. The

Section 15 Challenge Should Be Remitted to the Federal Court 175 IX. Conclusion 183 I. Overview

[ 1 ] Canada and the United States are parties to a bilateral treaty designed to enhance their sharing of responsibility for considering refugee status claims. In essence, the treaty provides that refugee claimants must, as a general rule, seek protection in whichever of the two countries they first enter after leaving their country of origin. The Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries , Can. T.S. 2004 No. 2, is known as the “ Safe Third Country Agreement ”. The treaty’s

preamble speaks to the parties’ mutual recognition that both countries offer generous systems of refugee protection, such that claimants can find effective protection in either country. Sharing responsibility is thus understood as justified, even though the laws of each country differ. [ 2 ] The Safe Third Country Agreement is given effect in Canadian domestic law through the Immigration and Refugee Protection Act , S.C. 2001, c. 27 (“ IRPA ”), and its regulations. Under s. 101(1)(

e) of the IRPA , refugee status claims are ineligible to be considered in Canada if the claimant came from a country designated by the regulations. Countries may only be so designated if they are viewed as complying with their “ non-refoulement ” obligations under international law. These obligations — which prohibit directly or indirectly returning a person to a place where they would face certain kinds of irreparable harm, including threats to their life or freedom, torture and cruel or degrading treatment — are the cornerstone of the international refugee protection regime (see, for a plain language

summary, United Nations, Office of the High Commissioner for Human Rights, The principle of non-refoulement under international human rights law , July 5, 2018 (online)). A designated country is thus seen as a safe third country in that it is viewed as an appropriate partner with which Canada can share responsibility for considering refugee claims. The United States is designated under s. 159.3 of the Immigration and Refugee Protection Regulations , SOR/2002-227 (“ IRPR ”).

It is the sole designated country in Canadian law. [ 3 ] The appellants challenge this scheme principally on the basis that it violates the rights guaranteed by ss. 7 and 15 of the Canadian Charter of Rights and Freedoms . They claim that the legislation results in Canadian immigration officers summarily returning claimants to the United States without considering whether the United States will respect their rights under international law, including those relating to non-refoulement and detention. [ 4 ] Certain questions are not in issue in this appeal.

First, there is no debate that safe third country agreements, as a general matter, may be compatible with international law (see, e.g., I. Atak and F. Crépeau, “Asylum in the twenty-first century: Trends and challenges”, in A. Triandafyllidou, ed., Routledge Handbook of Immigration and Refugee Studies (2nd ed. 2023), 358, at p. 363). Second, the appellants do not attack the validity of the Safe Third Country Agreement itself. Third, this Court is not tasked with assessing the wisdom of Canadian immigration policy, a matter that courts are not institutionally designed to evaluate, much less reform.

Fourth, this Court is not asked to resolve the thorny issue of irregular entry into Canada at border crossings other than official land ports of entry (see, e.g., A. Macklin, “Citizenship, Non-Citizenship and The Rule of Law” (2018), 69 U.N.B.L.J. 19, at pp. 35-37). Instead, the appeal focuses on whether the Canadian legislative regime implementing the Safe Third Country Agreement — that is, the relevant provisions of the IRPA and IRPR — complies with constitutional and administrative law requirements. [ 5 ] The complexion of the judgments below on the Charter questions could not be more different.

The Federal Court judge, who reviewed the evidence first-hand, found that the alleged s. 7 violations were largely substantiated and most grave. Deprivations of liberty and security of the person for refugee claimants arose because those returned to the United States faced risks of refoulement as well as other harm relating to immigration detention. In the result, she was persuaded that s. 7 was violated and that this breach was not justified under s. 1 . She declared s. 101(1)(

e) of the IRPA and s. 159.3 of the IRPR of no force or effect under s. 52 of the Constitution Act, 1982 . [ 6 ] By contrast, the Federal Court of Appeal held that the Charter challenge was not properly constituted and thus allowed the appeal brought by the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness .

Despite the appellants’ evidence and the findings of the Federal Court judge, the Court of Appeal found that the causation requirements for a Charter claim were not met because the appellants improperly targeted the legislation rather than administrative conduct. Respectfully, I disagree with the Court of Appeal and prefer the view — shared by both parties on appeal to this Court — that the regulation designating the United States was an appropriate focus of the Charter challenge.

In particular, since the s. 159.3 designation is the legislative basis for the relevant ineligibility determinations, it is properly subject to constitutional scrutiny. [ 7 ] Further, I agree with the Federal Court judge’s findings that the liberty and security of the person interests of refugee claimants are engaged by the Canadian legislation that renders their claims ineligible. Specifically, I reject the notion that the claimants’ s. 7 interests are not engaged simply because the legislation contains measures that could ultimately have offered protection.

This, I think, rests on a misunderstanding of Febles v. Canada (Citizenship and Immigration) , 2014 SCC 68 , [2014] 3 S.C.R. 431, and is inconsistent with this Court’s approach to s. 7 set out in Canada (Attorney General) v. Bedford , 2013 SCC 72 , [2013] 3 S.C.R. 1101. [ 8 ] The findings of fact relating to the treatment of refugee claimants made by the Federal Court judge are troubling.

Apart from her determinations that detention in the United States is “automatic” and that detention conditions cause a risk of refoulement , the respondents have failed to show that those conclusions are tainted by reviewable errors.

While she made no finding that American asylum policies give rise to a risk of refoulement , I am nevertheless persuaded that the record substantiated her view that the designation of the United States engages the liberty and security of the person interests spoken to in s. 7 of the Charter . [ 9 ] After engagement of these constitutionally protected interests is established, however, the s. 7 analysis turns to what scholar Gerald Heckman, writing prior to his appointment to the bench, describes as the “key question” in refugee protection decision making: whether the deprivation of the liberty or security of the person interests is in accordance with the principles of fundamental justice (“Revisiting the Application of

Section 7 of the Charter in Immigration and Refugee Protection” (2017), 68 U.N.B.L.J. 312, at p. 356). This requires an examination of whether Canadian state action “has interfered with those fundamental interests pursuant to a fair process and in a manner rationally connected and proportionate to the objectives of Canada’s immigration laws” ( ibid . ). The focus of this examination is not on whether asylum law in the United States mirrors the law in Canada. Instead, the focus is on the purpose and effects of the Canadian legislative scheme.

Of particular significance here is whether the ineligibility rule in the legislation is tempered by related provisions that provide relief from potential s. 7 violations. As this Court held in Canada (Attorney General) v. PHS Community Services Society , 2011 SCC 44 , [2011] 3 S.C.R. 134, speaking specifically to what are usefully described as curative exemptions, legislative “safety valve[s]” can ensure that deprivations of the s. 7 interests are not arbitrary, overbroad or grossly disproportionate (para. 113).

[ 10 ] From this perspective, and notwithstanding the findings of the Federal Court judge that the s. 7 interests are engaged, the challenge to s. 159.3 of the IRPR ultimately fails. The IRPA and the IRPR contain exceptions, exemptions and review obligations that address the problems associated with ineligibility and removal from Canada. These provisions give voice in Canadian law to the idea, expressed in

Article 6 of the treaty, that each government should be free to examine any refugee status claim when it determines that doing so is in its public interest. In particular, even where ineligibility under the scheme would lead to deprivations of liberty or security of the person — as the Federal Court judge found — the legislative scheme’s discretionary exemptions ensure compliance with the principles of fundamental justice.

In sum, the legislation is tailored to prevent certain infringements of s. 7 interests and, importantly for present purposes, survives constitutional scrutiny here because legislative safety valves provide curative relief. [ 11 ] While the Federal Court judge stated that safeguards in the scheme were “illusory”, her assessment did not consider all the relevant safety valves.

This omission was an error of law that led her to improperly discount how the legislative scheme allows Canada to consider refugee status claims when the principles of fundamental justice so require, notwithstanding their presumptive ineligibility. As a result, I am respectfully of the view that the Federal Court’s conclusion that the designation of the United States for the purposes of the Safe Third Country Agreement breached s. 7 cannot stand. [ 12 ] It may well be that, in practice, administrative decision makers do not always construe or deploy the legislative safety valves appropriately.

In such cases, the legislation itself remains valid, but administrative and Charter relief remains available on an individual basis. For instance, the Charter can prohibit administrative actors from returning refugee claimants to places where they would face circumstances that would shock the conscience of Canadians. Yet, while some of the appellants have detailed the difficulties they faced in seeking refugee protection at Canadian land ports of entry, they have not asked this Court to provide them with individualized relief.

Instead, they focus their constitutional challenge solely on alleged defects in the legislative scheme itself in order to have s. 159.3 of the IRPR declared of no force or effect under the Constitution Act, 1982 . [ 13 ] While I reject the appellants’ s. 7 challenge to the legislative scheme and their other arguments, I would nevertheless allow the appeal in part. I would remit the appellants’ claim that the legislation violates Charter - guaranteed equality rights, which was not decided by either court below.

The appellants’ s. 15 claim rests on grave allegations that women facing gender-based persecution and sexual violence are often denied refugee status in the United States contrary to

Article 33 of the Convention Relating to the Status of Refugees , Can. T.S. 1969 No. 6 (“ Refugee Convention ”). The evidentiary basis for the appellants’ s. 15 claim remains disputed and no factual findings were made in the Federal Court on which we can rely on appeal. It would be imprudent for this Court to dispose of the equality rights claim as would a court of first instance and thus leave the losing party with no avenue of appeal. II. The Parties [ 14 ] The appellants are individual refugee claimants and public interest litigants.

The respondents are the Minister of Citizenship and Immigration and the Minister of Public Safety and Emergency Preparedness. [ 15 ] Each individual appellant arrived from the United States to claim refugee protection in Canada. Because they arrived at land ports of entry, their claims were ineligible to be referred to the Refugee Protection Division, pursuant to s. 101(1)(

e) of the IRPA and s. 159.3 of the IRPR . [ 16 ] ABC and her daughters are citizens of El Salvador, where they say they were subject to gender-based persecution and sexual violence committed by gangs. They fled to the United States in 2016, where they were initially detained. American officials advised them they were subject to removal proceedings. ABC and her daughters were released for the duration of those proceedings. In 2017, ABC and her daughters arrived at the land port of entry at Fort Erie, Ontario to claim refugee protection in Canada.

They say that a Canadian Border Services Agency (“CBSA”) officer advised them that they should withdraw their claim, as they would be found ineligible in keeping with the Safe Third Country Agreement . They decided to return to the United States. About six months later, ABC and her daughters again attempted to make a claim for refugee protection. ABC’s husband, whose own refugee claim in Canada was pending, retained legal counsel in anticipation that the CBSA would determine that ABC’s and her daughters’ claims were ineligible. When the CBSA made that determination, it agreed to defer removal briefly.

Counsel applied for judicial review and also obtained a stay of removal, which remains in effect while this appeal is pending. [ 17 ] Ms. Mustefa is an Ethiopian citizen and member of the Oromo ethnic group. When she was 11, she travelled alone to the United States on a visitor’s visa for medical treatment. She stayed there through the end of high school. Ms. Mustefa says that oppression of the Oromo in Ethiopia escalated around this time. She decided not to return to Ethiopia but believed a policy known as the “one-year bar” made her ineligible to claim asylum in the United States. In 2017, Ms.

Mustefa travelled to the land port of entry in Saint- Bernard-de-Lacolle, Quebec to make a claim for refugee protection in Canada. The CBSA determined her claim was ineligible. She was returned to the United States, where she says that American officials detained her in solitary confinement for a week pending the results of a tuberculosis test and then detained her for another three weeks in an abnormally cold facility, where individuals convicted of criminal offences were present and where her religious dietary restrictions were not respected. While detained, Ms.

Mustefa was able to communicate with her family and with legal counsel, and she was later released on a bond. Ms. Mustefa applied for permanent residence in the United States, which was granted in 2021. [ 18 ] Ms. Al Nahass and her three children are citizens of Syria. She and her family lived in Saudi Arabia, where her husband worked. In 2015, Ms. Al Nahass travelled to Syria for medical treatment. She says that during that trip, she was kidnapped, attacked and threatened with sexual violence. The family subsequently travelled to the United States.

While there, she says that her husband lost his job, jeopardizing the family’s residency in Saudi Arabia. Ms. Al Nahass feared returning to Syria and began the asylum process in the United States. During this process, Ms. Al Nahass says that she grew concerned with what she perceived as public hatred expressed towards Muslim and Arab people and with actions taken by the United States executive. She and her family decided to seek refugee protection in Canada. When they did so at the land port of entry in Saint-Bernard-de-Lacolle, the CBSA determined their claims were ineligible. Ms.

Al Nahass contacted legal counsel, who filed a motion for an emergency stay of removal at the Federal Court. An interim stay was granted. Before the full stay motion could be heard, the Minister granted the family temporary resident permits. They have now been granted permanent residence based on humanitarian and compassionate grounds.

[ 19 ] The appellants introduced into evidence affidavits from ten anonymized, non-party affiants. Each affiant says that they were returned to the United States after their claims were found ineligible pursuant to the Safe Third Country Agreement . The nine affiants who answered written cross-examinations stated that, after their return, they were detained by American authorities. With one exception, they were released from detention pursuant to an administrative decision or bond hearing. Likewise, they made asylum claims in the United States with the assistance of counsel.

One affiant could not meet the bond set for their release. That individual was removed from the United States after unsuccessfully appealing the immigration judge’s unfavourable decision to the American Board of Immigration Appeals and, subsequently, to the Court of Appeals for the Second Circuit. III. Proceedings Below A. Federal Court, 2020 FC 770 , [2021] 1 F.C.R. 209 (McDonald J.) [ 20 ] The appellants challenged the validity of s. 159.3 of the IRPR on the basis that the designation of the United States was outside the authority granted by the IRPA . They also said that s. 159.3 of the IRPR and s. 101(1) (

e) of the IRPA unjustifiably violated ss. 7 and 15 of the Charter . The Federal Court judge rejected the argument that the regulation was ultra vires but found an unjustified s. 7 breach. Because of her conclusion on s. 7 , she declined to rule on the s. 15 claim. [ 21 ] The vires argument was rejected because Canadian Council for Refugees v. Canada , 2008 FCA 229 , [2009] 3 F.C.R. 136 (“ CCR (2008) ”), at para. 57 , held that whether a regulation is within the authority delegated by a statute is assessed based on facts at the time of promulgation. [ 22 ] The Federal Court judge found that the Charter applied.

Deprivations effected by foreign actors remain “subject to the guarantee of fundamental justice, as long as there is a sufficient causal connection between our government’s participation and the deprivation” (para. 100, citing Suresh v.

Canada (Minister of Citizenship and Immigration) , 2002 SCC 1 , [2002] 1 S.C.R. 3; see also Federal Court reasons, at para. 93, citing Bedford , at paras. 58 and 75-76 ). [ 23 ] In the Federal Court judge’s view, the impugned scheme engages “liberty” because “ineligible [ Safe Third Country Agreement ] claimants are . . . immediately and automatically imprisoned by U.S. authorities” (para. 103). It infringes security of the person given the risk of refoulement and the conditions of detention in the United States.

She found there was a “real and not speculative” risk that ABC would have been refouled from the United States based on “the challenges in advancing an asylum clai[m] for those detained”, such as barriers to accessing legal advice (para. 106). In addition, she concluded that some detention conditions in the United States engage security of the person since being subjected to these conditions flows directly from Canadian officials’ conduct in returning claimants there. [ 24 ] The Federal Court judge held that these deprivations do not comport with the principles of fundamental justice.

She concluded that, despite the suggestion that there are certain “safeguards” available to protect against overbreadth and gross disproportionality, these remedies “are largely out of reach and are therefore ‘illusory’” (paras. 129-30, distinguishing Tapambwa v. Canada (Citizenship and Immigration) , 2019 FCA 34 , [2020] 1 F.C.R. 700). [ 25 ] The Federal Court judge held that the s. 7 violations were not justified under s. 1 of the Charter and “decline[d]” to address the s. 15 arguments (see para. 154, citing Carter v. Canada (Attorney General) , 2015 SCC 5 , [2015] 1 S.C.R. 331, at para. 93 ).

She declared s. 101(1)(

e) of the IRPA and s. 159.3 of the IRPR of no force or effect pursuant to s. 52 of the Constitution Act, 1982 , and suspended the declaration for six months. B.

Federal Court of Appeal, 2021 FCA 72 , [2021] 3 F.C.R. 294 (Noël C.J. and Stratas and Laskin JJ.A.) [ 26 ] Stratas J.A., writing for a unanimous Court of Appeal, allowed the ministers’ appeal, dismissed the cross-appeal of the s. 15 claim and the ultra vires argument, set aside the judgment of the Federal Court, and dismissed the applications for judicial review. [ 27 ] The court found that the Charter claim was not properly constituted because it failed to account for two practical rules flowing from the requirement that impugned state action must be the cause of a Charter infringement (para. 57).

The first rule is that “provisions in an interrelated legislative scheme cannot be taken in isolation and selectively challenged” because “[o]ther related provisions may be responsible [for the alleged Charter violation] or may prevent or cure any possible defects” (para. 58(a), citing PHS ). The second rule is that when administrative action or inaction is the source of a rights infringement, that is what must be challenged rather than the legislation (para. 58(b), citing Little Sisters Book and Art Emporium v. Canada (Minister of Justice) , 2000 SCC 69 , [2000] 2 S.C.R. 1120).

The court concluded that if anything were to blame for the alleged violations, it would be the Government of Canada’s reviews of the United States’ designation, which are required under s. 102(3) of the IRPA , and related administrative conduct. Thus, by targeting s. 101(1)(

e) of the IRPA and s. 159.3 of the IRPR , the challenge was improperly constituted. [ 28 ] Despite allowing the appeal on this basis, the Court of Appeal addressed certain substantive s. 7 issues. First, it noted that the Federal Court judge erred in finding that returnees are “automatically detained” (para. 138, see also paras. 139-40). Second, the court rejected the finding that the scheme’s safety valves were “illusory” (para. 144). Third, the court found error with the Federal Court judge’s analysis of American detention conditions (para. 146).

Fourth, it also perceived errors in her analysis of the principles of fundamental justice. For the Court of Appeal, there was “no evidence that could support a finding that the treatment of returnees to the United States at the Canada-United States border ‘shocks the conscience’” (para. 161). In any event, the court considered the scheme to be neither overbroad nor grossly disproportionate. [ 29 ] The Court of Appeal found it unnecessary to address the substance of the s. 15 claim. Had it been necessary, the court wrote that “[w]here, as here, no factual findings have been made on the

section 15 issues, it is generally best for us to send the matter back to the Federal Court because of its expertise in fact-finding” (para. 173). IV. Issues

[30] The appellants raise three issues: Is s. 159.3 of the IRPR ultra vires? Does s. 159.3 unjustifiably breach s. 7 of theCharter? Should the s. 15 Charter claim be remitted to the Federal Court or decided based on the record on appeal? V. Statutory and Regulatory Scheme and Context [31] The impugned regulation is part of the legislative scheme that implements a bilateral treaty between Canada and theUnited States, that is, the Safe Third Country Agreement. While not itself challenged, this treaty shapes the

interpretation of itsimplementing scheme (see National Corn Growers Assn. v. Canada (Import Tribunal), (SCC), [1990] 2 S.C.R. 1324, atp. 1371). It is useful to examine the treaty and the legislation in turn, as they remain substantively distinct under Canada’s “dualistsystem” for the application of international legal instruments (Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R.176, at para. 150; see G. van Ert, Using International Law in Canadian Courts (2nd ed. 2008), ch. 7).

An additional protocol to the treatyhas been signed and the implementing legislation has been amended since the hearing (Regulations Amending the Immigration andRefugee Protection Regulations (Examination of Eligibility to Refer Claim), SOR/2023-58; Additional Protocol to the Agreementbetween the Government of Canada and the Government of the United States of America for cooperation in the examination of refugeestatus claims from nationals of third countries, March 24, 2023 (online)).

I refrain from commenting on these instruments as they do notdirectly affect the substance of the issues on appeal before the Court. A. Safe Third Country Agreement [32] About 30 years ago, Canada and the United States undertook the negotiation of an agreement to share responsibilityfor refugee status claims. The Canadian Council for Refugees, Amnesty International and the United Nations High Commissioner forRefugees (“UNHCR”) were among the organizations whose comments resulted in substantive amendments to a draft of the Safe ThirdCountry Agreement. The two states signed the agreement in 2002. [33] The

preamble to the agreement expressly acknowledges the governments’ international obligations to refugees(paras. 1, 2 and 8).

It also addresses the parties’ shared determination to safeguard for each eligible claimant “access to a full and fairrefugee status determination procedure” (para. 8) and emphasizes that both countries offer generous refugee protection systems (para. 4).Accompanying the treaty is a Statement of Principles associated with its implementation, which states that the parties intend to abide byprinciples that include safeguards for claimants, such as the opportunity for claimants to have a third party present during proceedings(Procedural issues associated with implementing the Agreement for cooperation in the examination of refugee status claims fromnationals of third countries: Statement of Principles, August 30, 2002 (online)). [34] The principle animating the Safe Third Country Agreement is that “the country of last presence shall examine, inaccordance with its refugee status determination system, the refugee status claim of any person who arrives at a land border port ofentry” (Article 4(1)).

This is the “crux” of the treaty (A. Macklin, “Disappearing Refugees: Reflections on the Canada-U.S. Safe ThirdCountry Agreement” (2005), 36 Colum. Hum. Rts. L. Rev. 365, at p. 371) or its “general principle” (S. Baglay and M. Jones, RefugeeLaw (2nd ed. 2017), at p. 279). The country of last presence is “that country, being either Canada or the United States, in which therefugee claimant was physically present immediately prior to making a refugee status claim at a land border port of entry” (Article 1(1)(a)).

The parties committed to reviewing the agreement and to inviting the UNHCR to participate in the first review (Article 8(3)). [35] While Article 4(1) sets out a broad principle, the treaty is limited in its application. To begin, the governmentssought to ensure that “indirect” or “chain” refoulement would not occur. They agreed that individuals returned to Canada or the UnitedStates would not be removed therefrom until that country had adjudicated the individual’s refugee status claim (Article 3).

They also didnot seek to apply the agreement to citizens or habitual residents of either country (Article 2) and provided for exceptions forunaccompanied minors and family reunification (Article 4(2)). [36] Even when the principle articulated in Article 4(1) would apply, the parties agreed that there should be an authorityto exempt claimants.

Article 6 provides that “either Party may at its own discretion examine any refugee status claim made to that Partywhere it determines that it is in its public interest to do so”. B. Domestic Implementation of the Safe Third Country Agreement [37] Section 101(1)(

e) of the IRPA implements the core principle of the Safe Third Country Agreement by providing thatthe claims of individuals who “came directly or indirectly to Canada from a country designated by the regulations, other than a countryof their nationality or their former habitual residence” are “ineligible” to be referred to the Refugee Protection Division.

This givesdomestic effect to the principle set out in Article 4(1) that an individual’s country of last presence will examine their refugee status claim.Various other rules in the IRPA and its regulations affect the application of this “general rule”, including (1) designation and reviewmechanisms; (2) limits to the scope of the general rule; and (3) exemptions.

(1) Designation and Review Mechanisms [38] The IRPA sets forth the relevant criteria for when a country may be designated by the Governor in Council unders. 101(1)(e). Only countries that comply with the non-refoulement obligations under the relevant international conventions are eligible: 102

(1) The regulations may govern matters relating to the application of sections 100 and 101 . . . and, for the purpose of sharingresponsibility with governments of foreign states for the consideration of refugee claims, may include provisions (

a) designating countries that comply with

Article 33 of the Refugee Convention and

Article 3 of the Convention Against Torture; [39] Section 102(2) lists factors to be considered when ascertaining whether a country complies with refugee protectionstandards mandated by the Conventions:

(2) The following factors are to be considered in designating a country under paragraph (1)(a): (

a) whether the country is a party to the Refugee Convention and to the Convention Against Torture; (

b) its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture; (

c) its human rights record; and (

d) whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection. [ 40 ] The Governor in Council “must ensure the continuing review” of the s. 102(2) factors with respect to each designated country ( s. 102(3) ). The United States is the only country that has been designated ( Regulations Amending the Immigration and Refugee Protection Regulations , SOR/2004-217).

Section 159.3 of the IRPR , which the appellants challenge, provides: 159.3 The United States is designated under paragraph 102(1)(

a) of the Act as a country that complies with

Article 33 of the Refugee Convention and

Article 3 of the Convention Against Torture, and is a designated country for the purpose of the application of paragraph 101(1)(

e) of the Act.

(2) Limits to the General Ineligibility Rule [ 41 ] Various provisions in the IRPR narrow the application of the ineligibility rule by ensuring that not all refugee claimants arriving from the United States are returned there. The regulations do this in two ways. First, the regulations contain limitations that closely track the contours of Articles 2, 3 and 4 of the Safe Third Country Agreement . For instance, under the regime considered in this appeal, s. 101(1)(

e) ineligibility applies only to the claims of individuals who arrive at land ports of entry — not elsewhere along the land border, by ship or by air ( IRPR , s. 159.4 ). There are specific exceptions for individuals with family in Canada, to facilitate family reunification ( s. 159.5 (

a) to (d)). As the treaty contemplates, these exceptions are applied according to Canada’s domestic understanding of the family (Article 1(2); IRPR , s. 159.1 ). There are also exceptions for unaccompanied minors (s. 159.5(e)) and for individuals who have certain Canadian immigration statuses ( s. 159.5 (

f) and (g)). Finally, the regulations ensure that certain individuals whose claims will not be adjudicated in the United States can access the Canadian system ( s. 159.5 (h)). [ 42 ] Second, the regulations include an exception reflecting Canada’s discretion, preserved under

Article 6 of the treaty, to consider claims when doing so is in its public interest (Baglay and Jones, at p. 279).

Section 159.6 of the IRPR ensures that claimants who establish that they have been charged with, or convicted of, an offence punishable by the death penalty in the United States or another country are not returned.

(3) Exemptions From the Application of the General Ineligibility Rule [ 43 ] Individuals subject to the provisions implementing the Safe Third Country Agreement cannot access some of the statutory mechanisms available to claimants in different circumstances. For instance, returnees are not eligible for a pre-removal risk assessment before they are removed ( IRPA , s. 112(2) (b)). Further, there is no administrative appeal body set out in the IRPA for them. Judicial review at the Federal Court, however, remains available ( s. 72 ).

Judges may grant stays of removal while such proceedings are ongoing ( Federal Courts Rules , SOR/98-106, r. 373 ; see also Baglay and Jones, at pp. 354-57). [ 44 ] The IRPA does, however, contain mechanisms for temporary or permanent exemptions from return to the United States (see, e.g., H. Mayrand and A. Smith-Grégoire, “À la croisée du chemin Roxham et de la rhétorique politique: démystifier l’Entente sur les tiers pays sûrs” (2018), 48 R.D.U.S. 321, at p. 342) . First, officers may grant an administrative deferral from the enforcement of a removal order.

This authority flows from s. 48(2) of the IRPA , which requires that removal orders be enforced “as soon as possible”. Courts have held that this provision leaves officers with discretion to delay the enforcement of a removal order (see, e.g., Atawnah v. Canada (Public Safety and Emergency Preparedness) , 2016 FCA 144 , [2017] 1 F.C.R. 153, at paras. 13-18 ; Revell v. Canada (Citizenship and Immigration) , 2019 FCA 262 , [2020] 2 F.C.R. 355, at para. 50 ; Tapambwa , at para. 87 ).

In this case, ABC and her daughters benefitted from an administrative deferral of removal, during which their counsel applied for a stay of removal. [ 45 ] Second, officers may grant a temporary resident permit. This authority flows from s. 24 of the IRPA , which allows an officer to issue a permit if they are “of the opinion that it is justified in the circumstances”. The Minister or their delegate may also make instructions to guide officers in determining when to issue such permits (s. 24(3)). Here, Ms.

Al Nahass’s family received temporary resident permits while the Minister considered whether to grant permanent exemptions. [ 46 ] Third, the Minister may grant an exemption based on humanitarian and compassionate grounds, as occurred for Ms. Al Nahass’s family. The Minister may exempt certain foreign nationals who are inadmissible from any of the requirements of the IRPA . They may grant exemptions where they view doing so as “justified by humanitarian and compassionate considerations relating to the foreign national, taking into account the best interests of a child directly affected” (s. 25.1(1)).

This assessment must “consider and give weight to all relevant humanitarian and compassionate considerations in a particular case” ( Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909, at para. 33 (emphasis in original)).

[47] Fourth, the Minister has a further discretion to exempt foreign nationals who are inadmissible from any of therequirements of the IRPA. The Minister may do so when they are “of the opinion that it is justified by public policy considerations”(s. 25.2(1)). The respondents observe that this provision permits the Minister to establish a temporary public policy exemptingindividuals who are part of a specified group from the ineligibility provision. [48] Any removal order against a foreign national can be stayed while the Minister makes their decision in relation tos. 25.1(1) or 25.2(1) (IRPR, s. 233). VI.

Administrative Law Issues [49] I turn now to the appellants’ argument that s. 159.3 of the IRPR is ultra vires because of post-promulgationconstraints on the Governor in Council’s statutory authority to maintain a designation. First, the appellants submit that it wasunreasonable, given the factors in s. 102 of the IRPA, to maintain the United States’ designation when there is evidence that manyrefugees cannot access effective protection there.

Second, they say that the Governor in Council breached its s. 102(3) obligation toensure continuing review of the United States’ compliance. [50] I would not give effect to these arguments. I agree with the respondents that the vires of s. 159.3 of the IRPR must beexamined at the time of promulgation. [51] Regulations “derive their validity from the statute which creates the power, and not from the executive body bywhich they are made” (Reference as to the Validity of the Regulations in relation to Chemicals, (SCC), [1943] S.C.R. 1,at p. 13, per Duff C.J., quoting The Zamora, [1916] 2 A.C. 77 (P.C.), at p. 90).

The limits imposed by the enabling statute are thereforefundamental to determining whether a regulation is intra vires (see J. M. Keyes, Executive Legislation (3rd ed. 2021), at p. 165). [52] Here, the appellants misconstrue the limitations imposed by s. 102 of the IRPA. The Governor in Council maypromulgate regulations “designating countries that comply with

Article 33 of the Refugee Convention and

Article 3 of the ConventionAgainst Torture” (s. 102(1)(a)). The statute also prescribes factors for the Governor in Council to consider “in designating a country”(s. 102(2)). These factors concern when countries may be designated. Thus, s. 102(1)(

a) and (2) establishes conditions precedent todesignation for the purposes of s. 101(1)(e), as the Federal Court of Appeal held in CCR (2008) (para. 75). The statute requires that theseconditions be met before, not after, a country is designated (see E. A. Driedger, “Subordinate Legislation” (1960), 38 Can. Bar Rev. 1, atp. 8). [53] The Governor in Council does, however, have statutory obligations in the period after a country is designatedpursuant to s. 102(1)(a). Section 102(3) creates an obligation to “ensure the continuing review” of the s. 102(2) factors.

These reviewsare not directed at whether the regulation exceeds the limits imposed by the statute, which is the proper focus of a vires challenge. In thissense, the s. 102(3) reviews are outside the scope of a challenge alleging that s. 159.3 of the IRPR is ultra vires the IRPA. Instead, thecontinuing reviews are a distinct statutory obligation of the Governor in Council. As a result, s. 102(3) reviews may be challenged basedon administrative law principles (see C.A. reasons, at para. 96).

However, the appellants did not seek judicial review of particulars. 102(3) reviews conducted after the promulgation of s. 159.3. [54] Focusing on the appropriate date and recognizing that the s. 102(3) reviews are outside the scope of a viresargument, I am persuaded that the appellants fail on this point. As this Court has held, “[r]egulations benefit from a presumption ofvalidity” (Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), 2013 SCC 64, [2013] 3 S.C.R. 810, at para. 25; see also P.-A. Côté and M. Devinat, Interprétation des lois (5th ed. 2021), at para. 1314).

Thus, to succeed in their argument based on s. 159.3’sinconsistency with the provisions they rely on, the appellants must show that on the date of promulgation, the designation of the UnitedStates was not authorized by s. 102(1)(

a) or (2) of the IRPA. Because they have directed their argument at post-promulgationdevelopments, the appellants have not done so. Accordingly, the appellants’ submission that s. 159.3 of the IRPR is ultra vires should berejected. [55] As a result, addressing other aspects of the appellants’ administrative law claims is unnecessary, including theappropriate standard of review and how that standard would be applied in the circumstances of this case. VII. The

Section 7 Claim [56] To establish a violation of s. 7 of the Charter, challengers must first show that the impugned legislation deprivesthem of life, liberty or security of the person. This analysis asks whether the legislation “engage[s]” those interests, in the sense that itcauses a limitation or negative impact on, an infringement of, or an interference with them (Carter, at para. 55; see also Bedford, atparas. 57-58, 90 and 111). A risk of such a deprivation suffices (see, e.g., Carter, at para. 62; R. v. Malmo-Levine, 2003 SCC 74, [2003]3 S.C.R. 571, at para. 89; Suresh, at para. 27).

Second, challengers must show that the deprivation is not in accordance with theprinciples of fundamental justice. [57] The appellants say that the Federal Court judge’s findings were grounded in th

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