Abstract
The Canada-United States Safe Third Country Agreement (“STCA”) requires refugee claimants travelling overland to seek protection in the first country of arrival as between Canada and the United States. The Federal Court determined that the United States’ detention practices did not comply with minimum human rights standards, such that Canada breached section 7 obligations to the applicant refugee claimants by deflecting them back to the United States. The Federal Court of Appeal overturned the decision, and the Supreme Court of Canada dismissed the appeal. The authors review the CCR judgment and present it as a cautionary tale about how a court can evade its constitutional duty in practice without appearing to depart from its liberal-constitutional commitments. Importantly, the judgment affirms that section 7 is engaged by the refugee determination process. However, it shrinks from the implications of that recognition in two ways. First, the Court launders the Federal Court’s findings of fact to overturn the finding of a risk of abusive detention conditions in the United States. Second, the Court rules that routine violations directed by the operation of the law can be caught and corrected by “safety valves” – discretionary immigration status applications elsewhere in the Immigration and Refugee Protection Act (“IRPA”). This substitution of discretionary relief for the Court’s remedial power under section 52 of the Charter not only abandons refugees to statutory remedies that are, in fact, illusory. It also incentivizes governance through discretion (rather than law) as an instrument that more effectively insulates government from constitutional challenge. While the judgment in CCR might be understood as exemplary of immigration exceptionalism, it is too soon to know whether the attractions of governing through discretion, and specifically through safety valves, will extend into other fields of law. Those at greatest risk will be other marginalized groups whose constitutional claims are prone to being framed as matters of deservingness rather than right.
Citation Information
Macklin, Audrey and Blum, Josh.
"Always Elsewhere: Constitutional Rights in CCR."
The Supreme Court Law Review: Osgoode’s Annual Constitutional Cases Conference
5.
().
DOI: https://doi.org/10.60082/2563-8505.1462
https://digitalcommons.osgoode.yorku.ca/sclr/vol5/iss1/4
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