Supreme Court of Canada **Appeal Heard:** October 6, 2022

Judgment Rendered: June 16, 2023 Docket: 39749 --- ## Parties 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 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 --- ## Headnote 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 the 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 detention in the United States, with opportunities for release and review, is related to the legislative objective. Sharing responsibility for refugee claims with another state will necessarily expose returnees to the foreign legal regime that governs refugee claimants' presence in that country. A degree of difference as between the legal schemes applicable in the two countries can be tolerated, so long as the American system is not fundamentally unfair. While the record shows that returnees face a risk of detention in the United States, it also discloses mechanisms that create opportunities for release and provide for review by administrative decision makers and courts. There is no basis to 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 would sustain an inference that medical isolation is being used improperly in the American immigration detention system. With respect to gross disproportionality, the question is whether the impugned legislation's effects on the s. 7 interests are so grossly disproportionate to its purposes that they cannot rationally be supported. Neither a risk of detention with opportunities for release and review nor a risk of medical isolation meets this high threshold. In Canada, as in the United States, these risks are within the mutually held norms accepted by our free and democratic societies. A provision mandating return to a real and not speculative risk of refoulement, however, would be overbroad as it would bear no relation to the purpose of the impugned legislation, which has respect for the non‑refoulement principle at its core. Such a provision 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 mandate return: 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 policy exemptions (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, they do not face any risk of refoulement from the United States. The safety valves can therefore intervene to cure what might otherwise be unconstitutional effects. Moreover, these mechanisms are properly considered within the principles of fundamental justice stage of s. 7 because they can be exercised in order to address the specific deprivation at issue, in this case the risk of refoulement. Properly interpreted, these mechanisms in the broader statutory scheme are sufficient to ensure that individuals are not subjected to real and not speculative risks of refoulement, if such risks do exist. These mechanisms must be understood in light of the discretion that Article 6 of the Safe Third Country Agreement preserves for Canada to consider claims when it is in its public interest to do so. The mere fact that the mechanisms predate the treaty does not make them irrelevant; when the agreement was signed, Canadian domestic law already included provisions that could facilitate individualized consideration of claimants' circumstances. Thus, even assuming that claimants face real and not speculative risks of refoulement from the United States, the Canadian legislative scheme provides safety valves that guard against such risks. For that reason, the legislative scheme implementing the Safe Third Country Agreement is not overbroad or grossly disproportionate and therefore accords with the principles of fundamental justice. Consequently, no breach of s. 7 of the Charter has been 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 this claim is that women fearing gender‑based persecution are adversely affected by the legislative scheme. Given the profound seriousness of the matter, the size and complexity of the record and the conflicting affidavit evidence, it would be imprudent for the 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. While the Federal Court judge should not be faulted for exercising judicial restraint and not deciding the s. 15 claim, a false economy has arisen due to the need to remit these issues. The principle of judicial policy underlying restraint in constitutional cases is sound, but it must be weighed against other factors, such as the possibility of an appeal and fairness to the parties. Claims based on s. 15 are not secondary issues only to be reached after all other issues are considered. The Charter should not be treated as if it establishes a hierarchy of rights in which s. 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. PHS Community Services Society*, 2011 SCC 44, [2011] 3 S.C.R. 134; *Suresh v. Canada (Minister of Citizenship and Immigration)*, 2002 SCC 1, [2002] 1 S.C.R. 3; considered: *Febles v. Canada (Citizenship and Immigration)*, 2014 SCC 68, [2014] 3 S.C.R. 431; *Canadian Council 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)*, [1990] 2 S.C.R. 1324; *Kazemi Estate v. Islamic Republic of Iran*, 2014 SCC 62, [2014] 3 S.C.R. 176; *Atawnah v. Canada (Public Safety and Emergency 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 of the Regulations in relation to Chemicals*, [1943] S.C.R. 1; The Zamora, [1916] 2 A.C. 77; *Katz Group Canada Inc. 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*, [1985] 1 S.C.R. 441; *R. v. Parker* (2000), 49 O.R. (3d) 481; *United States of America v. 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Canada (Justice)*, 2010 SCC 56, [2010] 3 S.C.R. 281; *Canada (Attorney General) v. Ward*, [1993] 2 S.C.R. 689; Minister of Employment and Immigration v. Satiacum (1989), 99 N.R. 171; *Van de Perre v. Edwards*, 2001 SCC 60, [2001] 2 S.C.R. 1014; *Canadian Council for Refugees v. Canada*, 2007 FC 1262, [2008] 3 F.C.R. 606; *R. v. Find*, 2001 SCC 32, [2001] 1 S.C.R. 863; *Kindler v. Canada (Minister of Justice)*, [1991] 2 S.C.R. 779; *Lake v. Canada (Minister of Justice)*, 2008 SCC 23, [2008] 1 S.C.R. 761; *Canada (Attorney General) v. Barnaby*, 2015 SCC 31, [2015] 2 S.C.R. 563; *R. v. Hills*, 2023 SCC 2; *RJR-MacDonald Inc. v. Canada (Attorney General)*, [1995] 3 S.C.R. 199; *R. v. Ndhlovu*, 2022 SCC 38; *R. v. Appulonappa*, 2015 SCC 59, [2015] 3 S.C.R. 754; *Hollis v. Dow Corning Corp.*, [1995] 4 S.C.R. 634; *R. v. Morgentaler*, [1988] 1 S.C.R. 30; R. (Yogathas) v. Secretary of State for the Home Department, [2002] UKHL 36, [2003] 1 A.C. 920; R. v. 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Regulations Amending the Immigration and Refugee Protection Regulations, SOR/2004‑217. Regulations Amending the Immigration and Refugee Protection Regulations (Examination of Eligibility to Refer Claim), SOR/2023‑58. Regulatory Impact Analysis Statement, SOR/2004‑217, Canada Gazette, Part II, vol. 138, No. 22, November 3, 2004, pp. 1622‑23, 1627. Supreme Court Act, R.S.C. 1985, c. S‑26, s. 46.1. --- ## Treaties and Other International Instruments Additional Protocol to 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, March 24, 2023. 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, preamble, Articles 1(1)(a) "country of last presence", (2), 2, 3, 4, 6, 8(3). 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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. --- ## Counsel 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. --- ## Reasons for Judgment The judgment of the Court was delivered by Kasirer J. — --- ### TABLE OF CONTENTS | Section | 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. --- ## VIII. The Section 15 Claim ### A. The Parties' Positions on the Section 15 Challenge [ 172 ] In their factum, the appellants asked this Court to remit the matter to the Federal Court. They acknowledge that, in declining to decide their claim under s. 15 of the Charter, the Federal Court judge made no findings of fact on which a gender-based discrimination argument might rest. In oral argument, counsel for the appellants advanced the alternative argument that it is open to this Court to make the necessary factual findings to decide the s. 15 issue and noted that the matter was pleaded before the courts below. [ 173 ] The basis of the appellants' s. 15 claim in the Federal Court was that women fearing gender-based persecution are adversely affected by s. 159.3 of the IRPR. The appellants submitted, for instance, that the American interpretation of "particular social group" — one of the classes of individuals protected from refoulement under Article 33(1) of the Refugee Convention — is overly restrictive with respect to women. [ 174 ] The respondents argue that there is no need to remit the matter because the appellants' gender-based concerns are properly addressed within the s. 7 analysis. In the respondents' submission, what primarily drove the s. 15 claim was the decision in Matter of A-B-, 27 I. & N. Dec. 316 (A.G. 2018), which was vacated in 2021. They submit that the American system recognizes gender-related harms as a basis for asylum claims and that, on a fair reading of the record, there is no evidence of a s. 15 breach. ### B. The Section 15 Challenge Should Be Remitted to the Federal Court [ 175 ] The Supreme Court Act, R.S.C. 1985, c. S‑26, empowers this Court to remand any appeal or part thereof to the court appealed from or the court of original jurisdiction (s. 46.1). This discretion is to be exercised "in the interests of justice" (*Wells v. Newfoundland*, [1999] 3 S.C.R. 199, at para. 68; *Saadati v. Moorhead*, 2017 SCC 28, [2017] 1 S.C.R. 543, at para. 45; *R. v. Esseghaier*, 2021 SCC 9, at para. 63). Here, remitting the s. 15 challenge is just in the circumstances. [ 176 ] A court of first instance would have, as a part of its fact-finding mandate, an institutional advantage in making the determinations necessary to a fair treatment of the s. 15 claim. The evidentiary record is voluminous, and while this Court is entitled to make factual findings based upon it, much of the expert affidavit evidence regarding the s. 15 allegations conflicts. For example, the Court would have to evaluate competing expert opinions on a line of cases dealing with the American approach to defining a "particular social group" (see, e.g., Affidavit of Yale‑Loehr, at paras. 118‑30; Affidavit of Karen Musalo, at paras. 10 et seq., reproduced in A.R., vol. XXI, at pp. 8965 et seq.). To decide the gender-based claim on the merits, this Court would have to assume the mantle of trier of fact and consider potentially conflicting trends in American jurisprudence as an appellate court of final resort. [ 177 ] Appellate courts may — and occasionally are required to — assume the role of finder of fact where doing so is "in the interests of justice and feasible on a practical level" (*Hollis*, at para. 33, per La Forest J.). However, they are "generally, and justifiably, wary" of doing so (ibid.), given the many advantages first instance courts have in drawing factual inferences. These include their "relative expertise with respect to the weighing and assessing of evidence" and their "inimitable familiarity with the often vast quantities of evidence" (*Housen*, at para. 25). Appellate courts should be especially cautious, for example, when a first instance judge has failed to make essential factual findings and where evidence conflicts or is in dispute (*Hollis*, at paras. 89 and 93, per Sopinka J., dissenting, but not on this point). [ 178 ] In my view, this Court is not well placed to make the factual findings necessary to assess the merits of the s. 15 claim. Given the profound seriousness of the matter, the size and complexity of the record and the conflicting affidavit evidence, it would be neither "in the interests of justice" nor "feasible on a practical level" for this Court to take up the task of finder of fact (*Hollis*, at para. 33). Notably, there would be no possibility of appeal with respect to any factual determinations this Court might make on the disputed, conflicting evidence. [ 179 ] Further, it would not be in the interests of justice to dismiss the s. 15 claim for lack of argument. It is true that the appellants did not argue the substance of their s. 15 claim before this Court beyond a brief mention in their factum and a reference in oral argument to their pleadings before the courts below. This Court has sometimes held that the aspects of a claim not argued by an appellant can be considered abandoned and can thus be dismissed (see, e.g., *Meyer v. General Exchange Insurance Corp.*, [1962] S.C.R. 193, at p. 201, per Locke J.). These decisions rightly recognize that appellants are generally expected to provide full arguments for the claims they maintain before this Court. Yet, I sense it would be inappropriate to interpret the appellants' lack of argument as an abandonment of serious submissions that the courts below commented on so briefly and did not decide. In the specific circumstances of this appeal, it was not unreasonable for the appellants to limit their pleadings to a request for this Court to remit the s. 15 matter. The alternate argument that the matter be decided here was not a considered position. It would have been unrealistic for the appellants to attempt to fill the factual void left by the courts below while simultaneously advancing novel legal arguments, such as those relating to causation and equality rights in the international context. [ 180 ] Finally, I note that certain interveners are troubled by what they see as a judicial "pattern of neglect with respect to section 15" in challenges based on multiple Charter rights (I.F., David Asper Centre for Constitutional Rights, West Coast Legal Education and Action Fund Association and Women's Legal Education and Action Fund Inc., at para. 13). One can well understand the concern: claims based on s. 15 are not secondary issues only to be reached after all other issues are considered. The Charter should not be treated as if it establishes a hierarchy of rights in which s. 15 occupies a lower tier. [ 181 ] I would not fault the Federal Court judge here for exercising judicial restraint and not deciding the s. 15 claim. I recognize that the principle of judicial policy underlying such restraint is sound, as "[i]t is based on the realization that unnecessary constitutional pronouncements may prejudice future cases, the implications of which have not been foreseen" (*Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy)*, [1995] 2 S.C.R. 97, at para. 9, per Sopinka J.). Even so, these judicial policy considerations are not always determinative. They must be weighed against other factors, such as the possibility of an appeal and fairness to the parties. While the proceeding at first instance remains the "main event" (*Housen*, at para. 13, quoting Anderson v. Bessemer City, 470 U.S. 564 (1985), at pp. 574‑75), the possibility that further proceedings might require addressing alternative constitutional grounds should be considered. As in this case, when first instance judges decline to consider further constitutional issues, a false economy may arise if appellate courts have to remit claims. [ 182 ] In sum, it is in the interests of justice to send the matter back to the Federal Court for determination, as the Federal Court of Appeal rightly recognized (para. 173). Nothing in these reasons should be taken to decide the factual or legal questions that will be relevant to the s. 15 challenge. --- ## IX. Conclusion [ 183 ] I would answer the questions posed on appeal as follows. First, s. 159.3 of the IRPR is not ultra vires. Second, s. 159.3 does not breach s. 7 of the Charter. Third, the challenge based on s. 15 of the Charter should be remitted to the Federal Court. [ 184 ] Because the Federal Court of Appeal allowed the appeal and dismissed the applications for judicial review in their entirety, certain aspects of its judgment should be set aside. In particular, the Court of Appeal erred in deciding that the challenge to s. 159.3 of the IRPR based on s. 15 of the Charter should be dismissed rather than remitted to the Federal Court. Accordingly, I would allow the appeal in part. Neither party sought costs. Like the courts below, I would make no order as to costs on the appeal or the application for leave to appeal. --- Appeal allowed in part. --- ## Solicitors Solicitor for the appellants the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches: Refugee Law Office, Toronto. Solicitor for the appellants ABC, DE by her litigation guardian ABC, FG by her litigation guardian ABC, and Nedira Jemal Mustefa: Downtown Legal Services, Toronto. Solicitors for the appellants Mohammad Majd Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Yassin Al Nahass: Jared Will & Associates, Toronto. Solicitors for the respondents: Department of Justice — Ontario Regional Office, Toronto; Department of Justice — Quebec Regional Office, Montréal. Solicitors for the intervener Association québécoise des avocats et avocates en droit de l'immigration: Cliche‑Rivard, Avocats et Avocates, Montréal. Solicitors for the intervener the Canadian Civil Liberties Association: Landings, Toronto; Legal Aid Ontario — Refugee Law Office, Toronto; University of British Columbia Allard School of Law, Vancouver. Solicitors for the intervener the Canadian Association of Refugee Lawyers: Silcoff Shacter, Toronto. Solicitors for the interveners the National Council of Canadian Muslims and the Canadian Muslim Lawyers Association: Mithoowani Waldman Immigration Law, Toronto; National Council of Canadian Muslims, Ottawa. Solicitors for the interveners the Canadian Lawyers for International Human Rights and the Canadian Centre for Victims of Torture: Waldman & Associates, Toronto. Solicitor for the intervener the Queen's Prison Law Clinic: Alison M. Latimer, K.C., Vancouver. Solicitors for the intervener the Rainbow Refugee Society: Pender Litigation, Vancouver; Vayeghan Litigation, Vancouver. Solicitors for the intervener the British Columbia Civil Liberties Association: Goldblatt Partners, Toronto. Solicitors for the intervener the Advocates for the Rule of Law: McCarthy Tétrault, Vancouver; Jordan Honickman, Toronto. Solicitors 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.: University of Toronto, Faculty of Law, Toronto; Jamie Liew, Ottawa. Solicitors for the intervener the HIV & AIDS Legal Clinic Ontario: Henein Hutchison, Toronto. Solicitors for the intervener the Rainbow Railroad: Battista Smith Migration Law Group, Toronto. --- * Brown J. did not participate in the final disposition of the judgment.