Supreme Court of Canada upholds Safe Third Country Agreement

OTTAWA -

A pact with the United States to control the flow of asylum seekers across the shared border is constitutional, Canada's highest court ruled 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 Section 7 of the Charter of Rights and Freedoms, the right to life, liberty and security of the person, saying the U.S. is not actually safe for many asylum seekers.

They also argued refugees' right to equality under Section 15 of the Charter is violated because of allegations of unequal treatment for women in the U.S. who are fleeing domestic and gender-based violence.

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

"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

Lower courts did not offer a ruling on the equality argument, and Kasirer said in the ruling that the Supreme Court wasn't in the position to do so either.

"Given the profound seriousness of the matter, the size and complexity of the record and the conflict affidavit evidence, it would be neither 'in the interest of justice' nor 'feasible on a practical level' for this court to take up the task of finder of fact,"Kasirer said in the ruling.

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.

Asylum seekers and human rights organizations viewed the loophole as a lifeline for vulnerable people, but the large number of new arrivals put financial pressure on local governments and the province, which were obliged to provide housing and other supports for them.

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.

The Supreme Court heard arguments in the case before Trudeau and Biden announced this year's expansion.

Amnesty International has said the updated agreement creates an even more dangerous and unfair situation for people seeking asylum in Canada.

This report by The Canadian Press was first published June 16, 2023.