Canada’s top court has ruled that an agreement with the United States aiming to control the flow of refugees across the shared border is constitutional, ending a lengthy legal challenge by advocacy groups who argue the deal violates the rights of asylum seekers.
In a unanimous judgment released on Friday morning, the supreme court found the controversial Safe Third Country Agreement did not infringe refugee claimants’ rights to liberty and security of the person.
Until 2004, asylum claims could be made at any legal port of entry in Canada, where they would then be processed and claimants admitted if their claim was approved.
That changed when Ottawa successfully lobbied for the passage of the Safe Third Country Agreement, forcing migrants to make asylum claims in the country where they first arrived. It initially applied to land-based ports of entry – but not to irregular or unofficial crossings.
In recent years, tens of thousands of migrants have circumvented the agreement and claimed asylum at unofficial points along the 5,500-mile US-Canada border. In January, Royal Canadian Mounted Police intercepted more than 5,000 asylum seekers along the road, the highest since the government started tracking the increase that began in 2017, following the election of Donald Trump as US president.
But in March, the prime minister, Justin Trudeau, and President Joe Biden announced a change to the agreement, applying the rules to the entire border and permitting officials to turn back migrants attempting to cross at unofficial border points.
For 16 years, advocacy groups including the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International have challenged the constitutionality of the agreement in the courts, arguing the agreement breached the the right to life, liberty and security of the person under guaranteed Canada’s Charter of Rights and Freedoms. They argued the US is not safe for vulnerable asylum seekers. The case was brought by eight individuals from El Salvador, Syria and Ethiopia.
Canada’s federal government has countered that asylum seekers at the border have access to due processes in the United States.
In 2020 a federal court judge found that the Safe Third Country Agreement effectively meant ineligible claimants were imprisoned by US officials. But the following year, the judgment was overturned by the federal court of appeals.
In its judgment, the court found that the inclusion of legislative “safety valves” in the agreement, including the discretion to exempt someone from returning to the US on the basis of humanitarian and compassionate grounds meant the rules align with “the principles of fundamental justice”.
“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,” wrote Justice Nicholas Kaiser. “There is no basis to infer that these arrangements are fundamentally unfair. Thus, the risk of detention that returnees face is not overbroad.”
The court declined to rule on an argument that the agreement violated gender equality rights, returning that issue to the lower courts.
Abdulla Daoud of the Refugee Centre in Montreal said the decision was a “mixed bag” for advocates.
“Given the direction of gender-based violence in the US and issues surrounding sexual identity, we’re seeing the US divert away from Canada, so it’s promising to see the courts will revisit that,” he said.
But he was disappointed the court used the presence of legal “safety valves” to deny a violation of section 7 of the Charter, which guarantees the right to liberty and security of person.
“In theory and under the law there is access to the safety valves,” he said. “But we time and time again find this is not done in practice.”
Advocacy groups have worried that by deterring highly visible crossings, desperate asylum seekers could pursue more covert and dangerous crossings, as happens all too frequently at the US-Mexico border.
“With new revised agreement from earlier in the year, there are going to be more dangerous crossings. And they’re going to come up more and more often. It is unfortunate,” said Daoud. “We can do more. We’ve shown we can when we took in 170,000 people from Ukraine. But the current policies run contrary to what the current administration says about wanting to welcome refugees.”
