The Safe Third Country Agreement allows Canada to turn back most asylum seekers who come from the US.
The Safe Third Country Agreement (STCA) allows asylum seekers to be turned back on the grounds they should have applied for asylum in the first “safe” country in which they arrived, in this case the US.
Refugee advocates had argued in their court challenge that the agreement violates asylum seekers’ rights under the Canadian Charter of Rights and Freedom – notably their rights to life, liberty and security of the person, as well as their right to equal treatment.
They said those returned to the US face poor detention conditions and the prospect of refoulement, or being forcibly removed to their country of origin.
In the unanimous ruling released on Friday, Justice Nicholas Kasirer agreed that return to the US risked violating some rights. He cited the “risk of detention upon being returned there and some aspects of detention conditions” well as the risk of forcible return.
However, he cited legislative “safety valves”, including “discretionary exemption on the basis of humanitarian and compassionate or public policy grounds”, which are, at least in theory, designed to protect those rights.
Still, he noted “it may well be that, in practice, administrative decision makers do not always construe or deploy the legislative safety valves appropriately”, according to a brief of the ruling released by the court.
Naqib Sarwary, an officer from Amnesty International Canada, called the ruling “truly heartbreaking”.
“People who traveled thousands of miles to Canada seeking a safe home will continue to do so regardless of the Safe Third Country Agreement … it will put them in further danger as they cross through unofficial ports of entry, through farmer’s fields and through relying on smugglers,” Sarwary, who himself entered into Canada from the US via the unofficial Roxham Road crossing several years ago, told a news conference on Friday.
The Supreme Court holds the regulations designating the United States as a safe third country do not infringe refugee claimants’ rights to liberty and security of the person. Read our plain-language summary here: https://t.co/nv0jyJsy3u pic.twitter.com/hWtO41SQjC
— Supreme Court of Canada (@SCC_eng) June 16, 2023
Gauri Sreenivasan, co-executive director at the Canadian Council for Refugees told reporters the ruling “has mixed results for refugees and refugee rights in Canada”.
The ruling sends the case back to lower federal courts to review if the US-Canada agreement violates asylum seekers right or equality under the law under the Canada’s Charter of Rights.
The lower courts had not earlier ruled on that aspect of the case, leaving a pathway open for blocking the agreements in the courts, she said.
“The US 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 US causes serious violations of rights, rights that are protected both under the Canadian Charter and international law,” Sreenivasan said on Friday.
“Nothing has changed today in terms of the dangers that are faced by refugees at the border,” she said. “We continue to call for the government to fully and immediately withdraw from the Safe Third Country Agreement.”
The agreement between the US and Canada first went into effect in 2004 but applied only to formal crossings.
This year, US President Joe Biden and Canadian Prime Minister Justin Trudeau announced an amended agreement that would apply to the entire border.
The move came as Trudeau faced political pressure to address an increase in irregular crossings, the vast majority in the eastern province of Quebec.
The Royal Canadian Mounted Police had intercepted more than 39,500 asylum seekers who irregularly crossed the border into Canada in 2022.
Canada’s federal government has defended the agreement, maintaining that the treatment of asylum seekers in the US does not breach their rights and there are adequate safeguards in place.