To Defer or Not to Defer: Analyzing the differences between the Canadian Federal Court and Supreme Court cases on the Safe Third Country Agreement

Abstract

In 2023, the Supreme Court of Canada (SCC) contradicted the Federal Court decision on the Safe Third Country Act (STCA), ruling it as constitutional. The STCA allows Canada to send asylum seekers back to the USA if that was the country they first entered. This has resounding and potentially dangerous impacts on asylum seekers as well as on Canadians who are increasingly concerned with immigration.

This paper answers the question of why the Federal Court and Supreme Court decisions were different. By comparing the two judicial decisions, I argue that the Supreme Court showed more deference to the federal government than the Federal Court (FC) did. Deference is defined in this paper as the weight a judge gives to the decision of the legislative and executive branches. This argument adds to the literature by connecting two sides of the debate on whether the SCC is generally deferential or not.

This research provides information for those who continue to bring cases against the STCA about how the SCC and FC differ. The paper begins with background on the topic, a literature review which includes my argument and relevant cases, and then my findings and analysis using judicial reasoning. I conclude with weaknesses in my research and its significance for Canadians.