Supreme Court of Canada Upholds Safe Third Country Agreement

The Supreme Court of Canada in Ottawa on Aug. 10, 2022. 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 courtruled in a unanimous decision Friday.

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 the right to life, liberty and security of the person, saying the U.S. is not actually safe for many asylum seekers.

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

“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.

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 over allegations of unequal treatment for women in the U.S. who are fleeing domestic violence.

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.

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 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.