Safe Third Country Agreement is Held as Constitutional

Safe Third Country Agreement is Held as Constitutional

On June 16, 2023, the Supreme Court of Canada ruled in a unanimous decision that the Safe Third Country Agreement (STCA) is constitutional. The STCA was put in place to help the Canadian and United States governments better manage the refugee systems in each country for people crossing the Canada-US border. However, the Agreement has been highly contested as many refugee advocacy groups have argued that the Agreement violates the Canadian Charter of Rights and Freedoms.

What is the Safe Third Country Agreement (STCA)?

The STCA is a bilateral deal signed between the US and Canada that first came into effect in 2004. The agreement requires refugee claimants to request asylum in the first ‘safe’ country in which they arrive, whether this is Canada or the USA. Through the STCA, Canada and the US have each been designated as a ‘safe’ country – meaning if a refugee claimant were to arrive at the Canadian border from the US (or vice versa), they would be deemed ineligible for refugee protection and returned back to the US to make their refugee claim there.

Considering the importance of family unity, the best interests of children and public interest, there are four types of exceptions to the STCA that allow for claimants in the USA to be eligible to make a refugee claim in Canada:

  • Family member exceptions
  • Unaccompanied minors exception
  • Document holder exceptions
  • Public interest exceptions

The Agreement was further expanded in March 2023 to close a loophole that previously saw refugees using unofficial border crossings to enter Canada and to then be eligible to make a refugee claim in Canada, once they were inside the country. The expansion now has the STCA apply to the entire 8,900 kilometers of the shared border to now include all border crossings, including unofficial ones.

Why was the Agreement in court?

Since the STCA came into effect, refugee advocacy groups have called for the Agreement to be axed, calling it unconstitutional. The primary argument is that the Agreement violates section 7 of the Charter of Rights and Freedoms, which protects an individual’s right to life, liberty and the security of the person. Advocacy groups argue that the Agreement allows for Canada to arbitrarily return refugees to the US without considering the claimant’s safety and the poor state of US facilities. They claim that those returned to the US are automatically detained, treated poorly and face deportation to their country of origin which can be dangerous to their safety.

Conversely, the Canadian government argues that the US is a democracy with a well-functioning immigration system that respects the law. They state that under the STCA, both Canada and the US have a responsibility to protect human rights and fundamental freedoms, and the designation of the US as a safe third country is within the principles of fundamental justice.

The constitutional validity of the Agreement was originally brought to a legal challenge in 2007. The Federal Court originally found the STCA to be unconstitutional and in violation of section 7 of the Charter. On appeal, the Federal Court of Appeal reversed the decision and upheld the STCA as constitutional. The decision was subsequently appealed to the Supreme Court of Canada.

What did the Supreme Court decide?

The Supreme Court dismissed the appeal and held that the STCA does not violate section 7 of the Charter, with Justice Nicholas Kasirer writing the opinion for the court in Canadian Council for Refugees v. Canada (Citizenship and Immigration), 2023 SCC 17.

The Court said there are “safety valves” in the agreement that “are sufficient to ensure that no deprivations contrary to the principles of fundamental justice occur”. Refugee claimants have access to remedial measures that can prevent them from being returned back to the US such as temporary resident permits, humanitarian and compassionate exemptions and administrative deferrals of removal. While there is evidence to show that returnees face a risk of detention when returned to the US, there are mechanisms that create opportunities for release and provide for review of decisions. Justice Kasirer agreed with the government lawyers that the risk of detention is not overbroad and the US is in fact a safe place for refugee claimants. Canada is allowed to keep sending migrants back to the US, so long as the US system is not fundamentally unfair, consequently upholding the constitutional validity of the STCA.

The Agreement was also appealed on grounds of the STCA violating section 15 of the Charter, which guarantees equality rights of individuals. Advocacy groups have argued that the US’s policy to deny refugee claims of gender-based violence is a violation of section 15. However, since the original claim in Federal Court was not decided on section 15 grounds, the SCC could not decide the appeal on these grounds. As such, the SCC has sent the case back down to the lower courts for the STCA to be reviewed with regard to the section 15 equality concerns.

Thus while the STCA is to remain valid for the time being, the future of the Agreement is vulnerable to being deemed otherwise.