Under the Canada-United States Safe Third Country Agreement (“STCA”), Canadian immigration officials return refugee protection claimants arriving from the United States to have their claims determined in that country, and vice versa. This paper tries to tease out the equality rights arguments under section 15 of the Canadian Charter of Rights and Freedoms likely to be advanced in an ongoing constitutional challenge to the STCA and its implementing regulations. The paper briefly explores why equality rights challenges have often been given short shrift in cases involving “migration control”. We argue such cursory treatment is inappropriate in the challenge to the STCA given legal constraints flowing from international refugee law, which include obligations of non-discrimination. We then turn to the domestic jurisprudence under section 15 of the Charter. After delving into the issues that may arise in the litigation due to the chronic uncertainty that afflicts equality rights jurisprudence in Canada, we explore doctrinal questions arising under each of the two steps in the test for applying section 15. We end by proposing a more coherent approach to understanding the meaning of “substantive equality” in refugee law.
Aiken et al. (Thu,) studied this question.