Overturn ‘Safe Third Country’ agreement, Canada’s top court urged

OTTAWA — Canada’s top court heard arguments Thursday on the constitutionality of returning failed refugee claimants who illegally enter this country from the United States under a long-standing border agreement between the two nations.

Lawyers for a group of appellants — as well as a number of human rights and refugee groups — argued to Supreme Court of Canada justices on Thursday that the binational “Safe Third Country” agreement violates the Charter of Rights and Freedoms.

“This legislative scheme effectively contracts out Canada’s international obligations to refugee claimants based on the premise that the U.S. will fulfill those obligations for us,” read the appellants’ statement of facts.

They contend the policy of Canada and the United States considering each other safe havens for refugees without any provisions for Canadian monitoring of what happens to those turned away is a violation of charter rights.

The Safe Third Country agreement between Canada and the United States was ratified in 2002, part of a number of measures taken to strengthen the two countries’ land borders after the Sept. 11 attacks.

Under the law, those attempting to claim refugee status must do so from the first safe country they enter. Canada considers the United States as one such safe country.

Those claiming refugee status in Canada aren’t permitted to do so at Canadian land border crossings, prompting streams of refugees lining up to illegally enter Canada at a number of “irregular” border crossings, most notably the notorious “Roxham Road” crossing straddling Quebec and New York state.

1. Chris Selley: Roxham Road is back in business, and Canada is already out of ideas

2. FIRST READING: Canada's extremely preventable border crisis

The Canadian government maintains the agreement is a necessary tool to maintain its border with the United States.

This case comes after a federal appeals court last year upheld the agreement, overturning a 2020 federal court ruling declaring the Safe Third Country Agreement violated constitutional guarantees.

At the heart of the issue is the question of whether the United States is indeed a “safe” country for refugees.

“The United States is not a safe place for refugee claimants escaping persecution,” said Canadian Council for Refugees president Aleks Dughman-Manzur in a statement.

“Despite the change in administration in the U.S., people sent back to the U.S. under the STCA continue to be at high risk of detention in abhorrent conditions.”

Some, Dughman-Manzur claims, are denied basic protections in the United States and ultimately end up being deported back to the country they were escaping from — particularly those facing gender-based persecution.

Among those taking part in the appeal are a woman and her two daughters from El Salvador who were turned away from Canada as ineligible in 2017.

The woman became a target of that country’s notorious MS-13 gang after her husband supplied information to the police.

Appellant counsel Jared Will told the court it comes down to a question of Canada’s compliance with existing conventions on refugees and human rights.

“If the U.S. is denying protection in violation of its obligations under the convention, then Canada’s decision to refuse them access to protection here has a disproportionate impact,” he said.

“That sounds to me like that if the United States is not complying with equality, then it’s an infringement of the Canadian Charter,” countered Justice Malcolm Rowe.

“If the United States doesn’t live up to equality, as defined in the Canadian charter, then that’s the basis of the infringement.”

Will said the point he was making was the exact opposite.

“It’s not a question on whether or not the U.S. is respecting equality rights, the question is whether the U.S. is respecting their rights to refugee protection under the convention.”

The analysis of Canadian law, Will argued, brings up questions of equality under Sec. 15 of the Canadian Charter of Rights and Freedoms, which guarantees equal protection under the law without regard to race, national or ethnic origin, colour, religion, sex, age or ability.

The court will announce its ruling at a future date.