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Supreme Court of Canada upholds Safe Third Country Agreement

It came into effect in 2004, recognizing Canada, U.S. as safe places for potential refugees to seek protection
The Supreme Court of Canada is seen, Wednesday, August 10, 2022 in Ottawa. THE CANADIAN PRESS/Adrian Wyld

A pact with the United States to control the flow of asylum seekers across the shared border is constitutional, Canada’s highest bench ruled in a unanimous decision Friday (June 16), but justices left the door open to further review in court.

The Safe Third Country Agreement, which came into effect in 2004, recognizes Canada and the U.S. as safe places for potential refugees to seek protection.

Under the agreement, refugees must seek asylum in the first of the two countries they land in. If their claim is rejected by one then they will not be successful if they try again on the other side of the border.

Opponents of the treaty had asked the top court to declare the legislation underpinning the pact violates Section 7 of the Charter of Rights and Freedoms, the right to life, liberty and security of the person, saying the U.S. is not actually safe for many asylum seekers.

They pointed to practices of putting refugees into detention, subjecting them to poor conditions and separating refugee children from their parents.

They also argued refugees’ right to equality under Section 15 of the Charter is violated because of allegations of unequal treatment for women in the U.S. who are fleeing domestic and gender-based violence.

The Supreme Court found the legislative scheme underpinning the pact does not breach Section 7 of the Charter.

“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,” the judgment read, which aligned with what the federal government had argued before the court.

“In my view, the record does not support the conclusion that the American detention regime is fundamentally unfair,” said the ruling written by Justice Nicholas Kasirer.

While the court recognized some of the risks refugees faced when they were returned to the U.S., the court ruled that there are “safety valves” in the legislation that are designed to protect Section 7 rights.

Those include humanitarian and compassionate exemptions that explicitly apply to unaccompanied minors and people with family connections to Canada, but can also be used in cases deemed to be in the public interest.

“There may be certainly individual cases where public interest demands that a different approach is taken and those safety valves can kick in, in those instances,” Immigration Minister Sean Fraser said in response to the decision Friday.

Fraser said part of his job is to continuously review U.S. practices to make sure they meet Canada’s standards as a safe third country.

The safety valves only exist on paper, said Gauri Sreenivasan, co-executive director of the Canadian Council for Refugees, one of the groups that was part of the legal challenge.

The top court has asked the Federal Court to take a further look at the opponents’ argument that the agreement violates Section 15 of the Charter, offering some hope to the human rights’ organizations who brought the court challenge forward.

“This is a very promising ruling from the court,” said Sreenivasan.

Her organization and others will digest the ruling before deciding their next steps, she said, but they will continue to push the government to put an end to the agreement in the meantime.

Lower courts did not offer a ruling on the equality argument, and Kasirer said in the decision that Supreme Court justices weren’t in a position to do so either, especially since there’s no avenue to appeal a Supreme Court ruling.

“Given the profound seriousness of the matter, the size and complexity of the record and the conflict affidavit evidence, it would be neither ‘in the interest of justice’ nor ‘feasible on a practical level’ for this court to take up the task of finder of fact,”Kasirer said in the ruling.

“We are deeply disappointed that refugees will need to ensure yet another legal challenge and to endure rights violations in the meantime,” said Ketty Nivyabandi, secretary-general of the Canadian section of Amnesty International.

Fraser said he doesn’t think a blanket change for women fleeing gender-based violence is appropriate, but exemptions might apply in some cases.

“We don’t simply want to open the asylum process for anyone who faces violence, when in fact they could be saved somewhere else in the country in which they’re currently situated,” he said.

He said the Safe Third Country Agreement needs to be re-evaluated regularly to make sure it reflects the realities of peoples’ experiences.

The rights and refugee advocates argue it already falls short.

“It tarnishes Canada’s identity as a compassionate and welcoming nation,” Sreenivasan said.

Prime Minister Justin Trudeau and U.S. President Joe Biden agreed to expand the treaty in March so that it would apply along all 8,900 kilometres of the shared border, not just at official crossings.

Before then, a loophole allowed asylum seekers who arrived between official points of entry along the land border, such as the one at Roxham Road in Quebec, to make claims in Canada and have them processed, despite having arrived in the U.S. first.

Asylum seekers and human rights organizations viewed the loophole as a lifeline for vulnerable people, but the large number of new arrivals put financial pressure on local governments and the province, which were obliged to provide housing and other supports for them.

The Supreme Court’s decision comes at the end of a legal battle first launched by several refugee claimants in Federal Court in 2007.

The Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International also participated in the proceedings as public interest parties.

The first challenge was successful, but was later overturned. A repeated attempt by the same group of organizations that began in 2017 saw the same outcome.

In both cases, the applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land entry port from the U.S. and sought refugee protection.

In her 2020 decision, Federal Court Justice Ann Marie McDonald concluded the Safe Third Country Agreement results in ineligible claimants being imprisoned by U.S. authorities.

Detention and the consequences flowing from it are “inconsistent with the spirit and objective” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the Charter, she wrote.

The Federal Court of Appeal overturned her decision in 2021.

Last year, Canada received 20,891 refugee claims from people who crossed the border outside of an official border crossing, federal data show.

In the first three months of 2023, before the agreement was extended to apply to the entire border, Canada received 14,192 refugee claims from irregular border crossers.

The Supreme Court heard arguments in the case before Trudeau and Biden announced this year’s expansion.

Amnesty International said the updated agreement creates an even more dangerous and unfair situation for people seeking asylum in Canada.

A U.S. Embassy spokesperson said in a statement: “The United States will continue to work with Canada to prioritize orderly and safe migration through regular pathways.”

Laura Osman, The Canadian Press

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