After 20 years in force, the Supreme Court of Canada (“SCC”) has ruled on the Agreement between the Government of Canada and the Government of the United States of America: For cooperation in the examination of refugee status claims from nationals of third countries, known as the Safe Third Country Agreement (“STCA”).
This bi-lateral treaty prevents most asylum seekers from lodging a claim for refugee status at a land border crossing between Canada and the United States. This “protection elsewhere” policy presupposes that the individual will be able to lodge a claim, and seek refuge, in the other country.
Protection elsewhere policies exist as a tool for states to control who is allowed within their geographical confines, without breaching their international responsibilities to asylum seekers by refouling them directly to their countries of origin. Protection elsewhere policies are useful in the face of an increasing complex refugee crisis, serve to prevent forum shopping, and can facilitate international cooperation, a principle recognized in the preamble of the Refugee Convention. A risk exists, however, in that the sending country cannot control the receiving country’s compliance with their international law commitments.
The Canada-USA STCA has been the subject of considerable debate and media attention in Canada, due in part to the changes to U.S. immigration policies over the past years. As such, a number of impacted refugee claimants and public interest litigants brought forth a challenge to this legislation in Canada, claiming it violates Canadian constitutional rights.
The decision turned on three main issues: Whether the designation of the United States as a safe country was ultra vires; and whether the return of asylum seekers from the Canadian border to the USA violated section 7 or section 15 of the Canadian Charter of Rights and Freedoms. The SCC found the STCA to be constitutional, although the section 15 challenge has been remitted to the Federal Court.
Importantly, at the time that the challenge to the STCA was launched, the STCA only applied to claimants at land borders. Asylum seekers crossing irregularly between the U.S. and Canada were not subject to the STCA. This implication of the STCA garnered significant media attention, especially after a number of serious injuries and deaths were reported of migrants crossing on foot. On March 24, 2023, however, the countries expanded the STCA to apply to those who have crossed irregularly within the preceding two weeks. The new expansion and concern around irregular border crossings were not addressed in the present case.
Prior to introduction of the STCA, Canada instituted the framework that allowed the Governor in Council to designate a country as safe. This, along with other changes to domestic immigration legislation, was challenged and brought to the SCC in 1992. The case failed on procedural grounds.
In 2007, the enacted STCA was challenged at the Federal Court and Federal Court of Appeal (leave to SCC dismissed) on what amounted to administrative considerations regarding what the Courts could consider.
The present case was then brought forward in 2017 and heard at the Federal Court in 2019. The applicants argued that Canada violated the constitutional rights of the claimants by returning refugee claimants to the USA. The applicants put forward evidence that certain policies in the U.S., including immigration detention and detention conditions, limitations to asylum law and protection, as well as potential refoulement were in violation of Canadian constitutional principles and thus the STCA should be struck down.
At the Federal Court level, the legislation was found to be unconstitutional. This decision was overturned on appeal, where the Federal Court of Appeal also found that the proper challenge should have been to the administrative context, not to the legislation itself. The claimants and public interest parties then appealed to the SCC and were supported by the submissions of sixteen intervenor parties.
The SCC decided the case based on three primary arguments: The vires of the legislation, section 7 of the Charter, and section 15 of the Charter.
Of note, the SCC was not considering whether the laws and actions of the United States government complied with the Canadian Charter. Rather, the challenge was whether the impact of the Canadian legislature, which turned claimants away at the border, could in turn lead to a deprivation of the claimants’ Charter rights on their return to the U.S.
First, the Court held that legislation designating the United States as a safe country is not ultra vires. The appellants argued that the Governor in Council did not have the statutory authority to maintain the designation of the United States as a safe country, as changes to the United States refugee policies rendered it no longer in compliance with the Refugee Convention. The Court found that it was only proper to look at whether the designation of the United States was within the statutory authority of the Governor in Council at the time of the designation. Moreover, the Government in Council has obligations to continue to review the designation. It is these reviews that could be challenged at a future date based on new changes in U.S. law and policy.
Section 7 of the Canadian Charter reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
The SCC found that claimants’ section 7 rights to liberty and security of the person were engaged, but in a way that complied with the principles of fundamental justice.
First, the risk of claimants being placed in detention upon return to the U.S. engaged liberty and security of the person, especially when considering evidence of the detention conditions. For example, the use of solitary confinement or medical isolation, inadequate medical care, lack of religious dietary accommodation and abnormally cold conditions all triggered the application of section 7. In addition, the risk of returning claimants to their countries of origin without due consideration of international obligations was also relevant.
The SCC also found Canada was properly responsible for the engagement of these rights. Canada’s action of turning claimants away at the border was a necessary pre-condition. Canada could also reasonably foresee, through actual and imputed knowledge, the engagement of some of the rights.
The Court then determined the legislation, although depriving claimants of their right to liberty and security of the person, did so in accordance with the principles of fundamental justice. The Court found that the Canadian legislation was neither overly broad nor grossly disproportionate, against the framework of international comity and foreign sovereignty.
Finally, the Court found that there were sufficient “safety valves” in the Canadian legislation to guard against potential refoulement. These safety valves include the exceptions to the STCA for certain family members, unaccompanied minors, and persons subject to the death penalty in the USA. They also include discretionary remedies from Canadian officials, such as the ability to issue temporary resident permits or delay removal of the claimants from Canada. As such, any breach in the legislation was cured, as the limited exemptions to the STCA and the discretionary remedies available at the border provided claimants with sufficient protections to avoid being refouled.
Section 15 of the Canadian Charter reads:
Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, mental or physical disability.
At the first instance, the applicants argued that the STCA leads to gender-based discrimination, on the basis that asylum claims in the U.S. based on gender-based violence are impacted by the U.S. interpretation of “particular social group”.
The Federal Court, however, opted not to address this argument, and it was dismissed at the Federal Court of Appeal level. The SCC thus determined that they were not the appropriate body to decide whether section 15 was engaged, as this decision required a more in-depth analysis of the facts and the witness statements pertaining to this issue. The SCC did not want to undertake the fact-finding role regarding the gender-based implications of the STCA. The decision on section 15 was therefore remitted to the Federal Court.
At present, the STCA remains in force, and with greater strength, than it existed prior to the commencement of this litigation in 2017. But additional challenges are on the horizon, both in terms of remitting the argument on gender-based discrimination, and for future challenges to the March 2023 agreement expansion.
This case remains an important study of how “protection elsewhere” policies operate, and how states can share the responsibility of international legal commitments. States must be wary, however, that they cannot defer their international or domestic obligations to other states through these treaties.
