Safe places

The Safe Third Country Agreement with our Southern neighbour that compels would-be refugees to cross into Canada at unofficial border crossings was bound to end up before our Supreme Court at some point. Last month, the top court finally granted leave to review its constitutionality. The Federal Court initially ruled in 2020 that the agreement violated refugee claimants' Charter rights by deporting those who arrived from the U.S. and had filed a claim in Canada in contravention of the STCA. The declaration of invalidity was suspended to give the government time to take action, and then the Federal Court of Appeal overturned the decision.

There are several key questions the Supreme Court must address now, says Janet Dench, executive director for the Canadian Council for Refugees, who brought the challenge along with several asylum claimants. She calls the Federal Court of Appeal ruling "disturbing," having "left us with a sense that there is no real recourse for violations of refugees' rights."

She also expresses concern that a broader application of the Federal Court of Appeal's ruling could affect other Section 15 Charter claims.

Indeed, part of the Council's case hinges on the failure of the U.S. to adequately protect people fleeing gender-based persecution, which it says was exacerbated under former President Donald Trump's administration. The Federal Court rendered its judgment based on Section 7 arguments, and did not consider Section 15 claims. Having overturned the Section 7 argument, the Federal Court of Appeal also did not need to look at Section 15.

Another issue is that the Federal Court of Appeal held that the plaintiffs were wrong to challenge the designation of the U.S. as a safe third country. Instead, it's up to cabinet to regularly review the designation, and therefore it is cabinet's decision that must be challenged.

"If this decision and analysis was to stand, then lawyers would constantly be asking what they are challenging," says Dench. "Are they challenging that a regulation was put into force that disadvantages or violates certain people's rights, or should they be challenging the fact that regulation hasn't subsequently been set aside," says Dench.

Jamie Chai Yun Liew, professor at the University of Ottawa, who has previously represented the Canadian Council for Refugees but is not involved in this matter, notes that the focus of the Federal Court decision was on the impact of the decision-making by those at the border implementing the STCA.

"There was a lot of social science, affidavit and first instance evidence presented to the court of the experiences of migrants who have been turned away at the border and their experiences," Liew says. "One of the things that the [Federal Court] focused on was the immediate detention of people who were turned away at the border, and the risk of them not even having their refugee claim assessed at all by either country."

Liew notes that the Federal Court of Appeal focused instead on "safety valves" that allowed for claimants to access a different assessment or protection before the decision leading to the harm that the applicants described, including federal review of the STCA.

"During the discovery process, the government was very resistant in sharing any information about the internal political system of how the Safe Third Country was reviewed, so there's very little evidence on that," Liew adds. "What evidence there is, publicly, doesn't show that the government has done a very deep review of these kinds of things, despite increasing evidence that the United States is a hostile place for refugees, especially during the Trump administration."

Despite the evidence of harms, Liew notes, the government's unwillingness to come forward with information during the discovery process means the Supreme Court will be limited in its ability to examine what actually happened.

“It will be interesting to see how those on the bench absorb the evidence and what angles they take,” Liew says.

Liew hopes that the court ensures that Charter rights aren't being trampled under the pretext that the so-called "safety valves" are available to refugee claimants. She notes that past ruling on immigration by the Supreme Court have raised questions around alternative remedies. On paper there are mechanisms, such as pre-removal risk assessments, whereby a person can apply to remain in Canada if they are at risk of physical harm in the event they get deported to their country. In reality, however, people have difficulty accessing these measures.

Audrey Macklin, professor and the Rebecca Cook Chair in Human Rights Law at the University of Toronto, says that Canada can neither directly violate the Charter rights of those seeing refugee protection, or indirectly, by returning them to a country that will violate fundamental human rights.

"We're talking about arbitrary detention, separation of families, detention of children, substantive doctrines that deny women fleeing gender persecution, and so on," says Macklin. "Procedurally, there is also an issue about the failure of the Canadian government to regularly monitor the United States for compliance with those fundamental human rights obligations."

Macklin adds that the STCA is predicated on the notion that the U.S. is safe for people to seek refugee protection. Even if it was not when the agreement was signed and implemented, circumstances can change. The problem is that Canada has no procedure to scrutinize whether the U.S. continued to be a safe country, she says.

What's more, Canada routinely evaluates the safety of other countries as part of refugee determination itself. It would hardly be an overstep for Canada to do the same with the U.S. Besides, there are provisions in the STCA allowing either country to suspend it for two six-month periods, or to terminate it with one year's notice. "There's nothing untoward about Canada doing that," says Macklin.

Liew doesn't think the court will strike down the whole Immigration and Refugee Protection Act. It's not the legislation that is problematic so much as the Safe Third Country Agreement, which flows from provisions in the Act.

"My suspicion would be that they would suspend or ask the government to terminate the agreement that flows from the provision, and it wouldn't be striking a provision from the legislation per se," Liew says. "Or they could give the government that six-month window, as the Federal Court did, to get their act together and either review it or amend it, and that might be a way for the government to save face."

Or the Supreme Court might find the violation so glaring that it suspends it right away, she says. But its history with immigration decisions shows a pattern of moving more cautiously.

Dench notes that because the situation in the United States can change from year to year, there isn't an expectation that the Supreme Court will make findings of fact. Instead, it could provide a pathway for these kinds of matters to be brought to the courts for evaluation.

Dench also disputes that the situation in the U.S. is solely attributable to Trump's policies. Since he left office, it's not like there's been a complete reversal of his border policies.

"We don't expect an impartial analysis to say that all of the existing problems have been solved," Dench says.

Ultimately, says Liew, the agreement has failed to live up to its promise. It hasn't stopped people from coming to the border, though it has made it harder to do so safely. There are countless stories of claimants who lost fingers from frostbite at irregular crossings or at the quasi-official crossing facility at Roxham Road in Quebec.

Therefore, she would advise the government "to look at how people can access our official ports of entry and process them in a way that is humane and fits with our international law obligations." 

Macklin notes that the STCA was struck at the behest of Canada, given that we only have one border. And though it is a mechanism to put breaks on the flow of people who can reach Canada and make refugee claims, she also disputes the notion that it is intended to combat "asylum shopping."

"In absolute and relative terms, the number of asylum seekers that Canada receives is trivial," says Macklin. "If you were seeking refugee protection and you had a child with you, and you knew that the United States would rip you away from your child, do we call it asylum shopping because you say I can get to Canada, please let me do that?"