Refugees who crossed the Canada-U.S. border wait in a temporary detention centre in Blackpool, Que., on Aug. 5, 2017. The Supreme Court of Canada has upheld the Safe Third Country Agreement, sending the matter back to Federal Court.GEOFF ROBINS/AFP/Getty Images
The Supreme Court of Canada has rejected a claim that the Safe Third Country Agreement allowing refugee claimants to be turned back to the United States violates their constitutional right to liberty and security.
The 8-0 ruling leaves the 2004 pact standing – for now. But the court sent the legal challenge back to Federal Court, prolonging a battle that has already lasted more than 15 years.
The issue still to be decided is whether the U.S. refugee-determination system makes it so difficult for women to claim protection from gender discrimination in their countries of origin that it violates their equality rights here in Canada, under the Charter of Rights and Freedoms. (The Charter applies to non-citizens, including those who have arrived and seek to make a refugee claim.)
Three advocacy groups that helped bring the legal challenge, including the Canadian Council for Refugees, called the ruling “a complex result that ultimately fails refugees.”
Three intervenors, including the Women’s Legal Education and Action Fund, said the court recognized “the profound seriousness of gender-based violence.”
Immigration Minister Sean Fraser told reporters that the agreement has “safety valves” to allow migrants with family members in Canada, unaccompanied minors and certain others entry to make refugee claims.
Barutciski: The Safe Third Country Agreement decision should be a wake-up call for Ottawa
“There may be certain individual cases where the public interest demands a different approach, and the safety valves can kick in.” But the vast majority “will have the ability to make a similar claim under the system that exists in the United States.”
The Safe Third Country Agreement took effect in 2004. It was an affirmation by neighbouring democracies that each could be trusted not to send claimants back to lands where they would be persecuted. If a claimant arrives in the U.S., that is where they must make their claim. The same goes for those arriving first in Canada.
Refugee advocates challenged the law in 2007, won at Federal Court but lost at the Federal Court of Appeal. They tried again in 2017 – the current case – and again won at Federal Court, before losing at the Federal Court of Appeal.
The case was brought by advocacy groups and by several migrants, including women fleeing sexual violence from gangs.
In 2020, Federal Court Justice Ann Marie McDonald found a risk of detention in the U.S., poor conditions in detention and a return to persecution in their countries of origin. She struck down the law, saying it violated Section 7 of the Charter, which protects liberty and personal security. She therefore did not rule on an equality claim made under the Charter’s Section 15.
The Federal Court of Appeal dismissed the ruling on liberty and security in 2021, in a 3-0 ruling by Justice David Stratas.
The Supreme Court said that exemptions in the agreement that allow immigration officials to keep certain refugee claimants from being turned back mean that the law does not violate liberty and security rights.
“Even assuming that claimants face real and not speculative risks of refoulement [return to persecution] from the United States, the Canadian legislative scheme provides safety valves that guard against such risks,” Justice Nicholas Kasirer wrote for the court.
Justice McDonald had found that the safety valves were illusory, on the basis that if they failed, it would be a practical impossibility for a claimant to seek a court’s review. But Justice Kasirer said Justice McDonald should have looked at whether the safety valves themselves were functioning to protect those who needed protection.
When the Supreme Court heard the case in October, the agreement did not cover the thousands of claimants who arrived at unofficial land-border crossing points. Since March, it covers all border crossings, which refugee advocates says makes the agreement all the more critical, and dangerous to claimants.
Justice Kasirer invited Parliament to clarify or add to the exemptions, to ensure that the legislation works to protect those who need protection.
And he went further, saying that when individuals seeking to use an exemption to the pact are denied entry, they may go to court to argue that their liberty rights were violated. Previous rulings of the Federal Court of Appeal had made such a step virtually impossible, immigration lawyers say.
Still, such Charter challenges are extraordinarily difficult to bring, said Andrew Brouwer, a lawyer who represented the advocacy groups.
“So as a remedy, it’s a pretty poor one,” he said in an interview. He said the government needs to clarify the law to show how the safety valves are supposed to operate.
“We had affidavit evidence of someone who was begging not to be sent back to the U.S., during her interview at the port of entry, saying that ‘if you send me back, you’re sending me back to a death sentence.’ The response was ‘there’s nothing we can do, we’re applying the law,’ " Mr. Brouwer said.
An important legal element that goes beyond the issue of refugees was a statement from Justice Kasirer that courts should not leave equality rights as something to be considered after other rights; there is no hierarchy of rights, he wrote.