Supreme Court upholds agreement that lets Canada send refugees back to U.S.
Top court finds migrant agreement with U.S. does not violate the Charter of Rights
In a unanimous decision, the Supreme Court of Canada ruled Friday that the Safe Third Country Agreement (STCA) between Canada and the United States is constitutional, at least in part — a legal victory for the federal government as it seeks to continue the practice of returning refugees who have tried to cross into this country from the U.S.
The STCA, a bilateral deal first signed in 2004, recognizes both Canada and the U.S. as "safe" countries for migrants and states that refugee claimants are required to request asylum in the country where they first arrive.
Under this agreement, refugee claimants arriving at an official land port of entry to Canada from the U.S. are deemed ineligible for refugee protection.
Canadian government lawyers have defended the law, saying the U.S. is a democracy with a well-functioning immigration system that respects international law.
Refugee advocacy groups have argued in court that the policy is unconstitutional.
They said that deeming the U.S. a safe country violates Section 7 of the Charter of Rights and Freedoms — which protects an individual's right to life, liberty and security of the person — because officers indiscriminately return refugees to the U.S. without considering a claimant's safety and the state of U.S. facilities.
Groups such as the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International told the top court in an October hearing that claimants who are returned to the U.S. are automatically detained, treated poorly and sometimes face deportation.
They claimed U.S. detention centres may run afoul of international law because there have been reports of inadequate medical care, cold temperatures and staff who do not respect religious dietary restrictions.
The judges rejected those arguments.
Justice Nicholas Kasirer, writing for the court, dismissed the appeal and the Section 7 claims, saying there are "safety valves" in the agreement that "are sufficient to ensure that no deprivations contrary to the principles of fundamental justice occur."
Kasirer wrote that the agreement accords with the charter because, under the STCA, there are exemptions that would allow some refugee claimants to stay in Canada.
The court said failed claimants have access to "curative measures," including temporary resident permits, humanitarian and compassionate exemptions, public policy exemptions and "administrative deferrals of removal" — a measure that allows Canada to temporarily defer removals if there's a humanitarian crisis.
"The legislation is tailored to prevent certain infringements of Sec. 7 interests and, importantly for present purposes, survives constitutional scrutiny here because legislative safety valves provide curative relief," said the ruling.
Kasirer accepted the government's argument that U.S. is a safe place for would-be migrants.
He said Canada can send migrants south "so long as the American system is not fundamentally unfair."
"While the record shows that returnees face a risk of detention in the United States, it also discloses mechanisms that create opportunities for release and provide for review by administrative decision-makers and courts. There is no basis to infer that these arrangements are fundamentally unfair. Thus, the risk of detention that returnees face is not overbroad," Kasirer wrote.
Case sent back to lower court
The court also signalled, however, that it may be sympathetic to refugee groups claiming the policy is a violation of Section 15 of the Charter of Rights — the section that guarantees equality under the law.
Refugee groups argued the U.S. often denies refugee claims that cite gender-based violence as the reason for the claim.
Kasirer ordered the case back to Federal Court for a review of the policy in light of equality concerns.
The Federal Court initially agreed with the refugee groups and concluded the deal is unconstitutional.
The government appealed that ruling to the Federal Court of Appeal, which then reversed course, allowing the deal to stand.
That prompted refugee groups to take the case to Canada's final court of appeal, which decided Friday that the existing agreement can be "tolerated."
Because the Federal Court did not initially consider Section 15 and equality rights when deciding the agreement is unconstitutional — it invalidated the policy on Section 7 and security of person grounds alone — Kasirer said the lower court must now re-evaluate the policy given serious claims about how the U.S. treats women migrants fleeing violence.
Immigration Minister Sean Fraser said Friday the Supreme Court has recognized Canada and the U.S. have a system which "respects the need to be compassionate toward the world's vulnerable" while also ensuring "an orderly migration system."
He said the government isn't opposed to asylum claims — Canada resettled more refugees than any other country last year. Ottawa just wants migrants to come through "normal pathways," he added.
Asked by NDP MP Jenny Kwan in question period if the federal government will expand STCA exemptions to specifically cover migrants fleeing gender-based violence, Fraser said the government will "continually monitor this particular issue."
Speaking to reporters after the decision, spokespeople for Amnesty International said they were "deeply disappointed" by the court's ruling and said it will subject refugees to "a pattern of dehumanizing treatment."
"Closed borders kill people. It should be open to all people seeking safety," said Naqib Sarwary, an Afghan refugee who works with the human rights group.
"The fight will continue," he added, saying Amnesty will pursue its Section 15 equality claims in the lower court.
"We are deeply disappointed that refugees must wait for yet another legal challenge. We renew our call to the government to uphold the rights of people seeking safety by ending the Safe Third Country Agreement," said Ketty Nivyabandi, a Burundian refugee who now serves as the secretary general of Amnesty's English-speaking branch in Canada.
Fraser ruled out tearing up an agreement that has just been upheld by Canada's top court.
"I have enormous respect for Amnesty as an organization," he said. "I have a point of disagreement on this particular issue."
Closing the loophole
The steady flow of migrants into Canada has been a hot political issue in recent years — particularly in Quebec, where some shelters are grappling with a surge of refugees.
The STCA, as originally written, did not apply at unofficial crossings like Roxham Road near Lacolle, Que.
That led thousands of migrants to use these so-called "irregular border crossings" to enter Canada and apply for protection — effectively dodging STCA provisions that block most Canada-bound refugees coming from the U.S.
Last year, Canada received 20,891 refugee claims from people who crossed the border outside of official border crossings, federal data shows.
In the first three months of 2023, Canada received 14,192 refugee claims from irregular border-crossers.
Prime Minister Justin Trudeau and U.S. President Joe Biden expanded the pact in March to cover the entire land border, closing the loophole.
The result has been an immediate drop in the number of border-crossing refugee claimants.
The court did not consider the STCA expansion in its Friday ruling.
Justice Russell Brown, who heard the case last October, resigned this week and did not participate in the final ruling, which is styled as Canadian Council of Refugees vs. Canada.
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