The Supreme Court of Canada on Friday said the Safe Third Country Agreement between Canada and the United States is constitutional.
The Supreme Court in its decision noted that the agreement does not violate Section 7 of the Canadian Charter of Rights and Freedom – the right to life, liberty and security of a person.
The Safe Third Country Agreement, which came into effect in 2004, recognizes Canada and the U.S. as safe places for migrants to seek protection.
Under the agreement, migrants must seek asylum in the first of the two countries they land in, making it illegal to cross the border and seek asylum in the other country.
Opponents of the treaty asked the top court to declare that the legislation underpinning the pact violates the right to life, liberty and security of the person, saying the U.S. is not actually safe for many asylum seekers.
The Canadian government argued to Supreme Court justices that returnees have access to fair asylum and detention processes south of the border.
The court said the parties bringing the challenge would have needed to prove any adverse impact on asylum claimants was caused as a result of the Canadian state’s actions.
“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,” the court said in its judgement.
The judjement went on, “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.”
The court recognized the risk that refugees face, but said there were safety valves present in the legislation. Gauri Sreenivasan, co executive director at the Canadian Council for Refugees, called on the federal government to withdraw from the agreement anyway. “The U.S. is not a safe country for refugees. And our organisations have brought overwhelming evidence that sending people who are seeking safety here back to the U.S. causes serious violation of rights. Rights that are protected both under the Canadian Charter (of Rights and Freedoms) and international law.”
She added, “Today’s decision from the Supreme Court has mixed results for refugees and refugee rights in Canada. But nothing has changed today in terms of the dangers that are faced by refugees at the border. We continue to call on the government to fully and immediately withdraw from the safe third country agreement.”
Ketty Nivyabandi, Secretary General of Amnesty International in Canada, expressed disappointment at Friday’s verdict. “While we remain hopeful that the federal court will ultimately find that this agreement violates refugee rights to equality and non-discrimination, we fear that the devastating impact on refugees in the meantime will continue. The stakes are extremely high. People are risking their lives just to seek safety in Canada because of this agreement.”
Immigration minister Sean Fraser spoke to reporters in Ottawa and said, “Canada is going to remain a world leader when it comes to the resettlement of some of the world’s most vulnerable people. Just a few days ago, the UNHCR confirmed for the fourth year in a row that Canada has resettled more refugees than any other country in the world. It’s important if we’re going to continue to have the ambition of being a world leader in refugee resettlement that we promote regular migration pathways and orderly management at the border.”
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 to make claims in Canada despite having arrived in the U.S. first.
Opponents of the pact have said it runs counter to the Charter of Rights and Freedoms, because returning people to the U.S. exposes them to risks in the form of detention and other rights violations.
The Supreme Court’s decision will finally put to rest the long-standing 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 evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”
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.
This year’s expansion of the agreement removed unofficial crossings such as Roxham Road in Quebec as viable options for potential asylum seekers to get to Canada.
The Supreme Court heard arguments in the case before Trudeau and Biden announced that update.
Amnesty International has said the updated agreement creates an even more dangerous and unfair situation for people seeking asylum in Canada.
With files from The Canadian Press
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