Refugee advocates disappointed federal government won’t drop border agreement with U.S. after judge rules deal violates human rights

Sending refugees who arrive at Canada’s land borders back to detention in the United States was ruled a violation of rights by Canada's federal court. The federal government is appealing the decision. (Photo by Mikhail Kusayev,

By Brian Dryden, Canadian Catholic News

[OTTAWA – CCN] – A federal government decision to appeal a court ruling that puts an international refugee agreement with the United States at risk is disappointing but not surprising to refugee advocacy and church groups that have long sought to have the Safe Third Country Agreement that has been in effect since 2004 scuttled.

A federal court agreed with a coalition of social justice and church organizations in July that the Canada-United States agreement known as the STCA that requires refugees trying to enter Canada from the southern border must first seek asylum in the United States violates Canada’s Charter of Rights.

That July 22 decision by Federal Court Judge Ann Marie McDonald, which gave the federal government six months to react to the ruling, was praised by groups such as the Canadian Council of Refugees and Canadian Council of Churches, which includes the Canadian Catholic Church, that were part of the coalition that launched the most recent court challenge of the agreement in 2017.

After the July ruling, critics of the agreement immediately called on the federal government to scrap the safe third country deal with the United States.

“We urge the government to take the principled and necessary step of moving immediately to stop sending refugee claimants back to the United States and suspend the Safe Third Country Agreement,” a statement released by the Canadian Council of Churches, Canadian Council for Refugees and Amnesty International said.

In a letter sent to Prime Minister Justin Trudeau and other high-ranking Canadian cabinet ministers on July 29, the coalition that challenged the agreement said “by any measure, respect for the rights of refugee claimants in the United States at this time constitutes a human rights crisis, particularly when it comes to the prevalence, arbitrariness and cruel and inhumane conditions associated with immigration detention, which fall far below required international human rights standards.”

“Canada should not continue to be complicit in these deeply troubling human rights violations for another day, let alone for six months,” the refugee rights coalition said.


But Federal Public Safety Minister Bill Blair said on Aug. 21 that the government must appeal the decision to bring clarity to Canada’s refugee asylum system as it relates to the United States.

“There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law,” Blair said in a statement.

“Canada has a long and proud tradition of providing protection to those who need it most by offering refuge to the world’s most vulnerable people, and the Government of Canada remains firmly committed to upholding a compassionate, fair and orderly refugee protection system. The STCA remains a comprehensive vehicle to help accomplish that, based on the principle that people should claim asylum in the first safe country in which they arrive,” Blair said.

“Canada continues to engage actively with the United States on the STCA, ensuring that the agreement reflects our commitment with respect to our international obligations, while continuously cooperating on how we manage our shared border,” he said.

The federal decision to appeal is not surprising to some who follow the courts and government.

Lawyer Michael Barutciski, a member of faculty of York University and who previously held a fellowship in law at Oxford University’s Refugee Studies Centre, said it is “understandable” in recent years since Donald Trump was elected president in the United States that concerns about refugee policies in the United States and how that affects the asylum agreement between Canada and the U.S. would grow, but it is important that the federal government challenge the court ruling.

“If this ruling stands, Canada’s ability to share responsibilities with the U.S. concerning refugee claimants will be severely constrained,” he said in an opinion piece published by the Macdonald-Laurier Institute public policy think-tank.

“Yet the issue represents a dilemma because the Federal Court’s view that the U.S. is unsafe for refugee claimants is understandable given the questionable practices south of the border,” he said, but added that Canada’s policies regarding refugees and asylum need to be looked at with a big picture view and not just through the lens of current American government policy.

“Seen against this backdrop, the ideological battle surrounding the STCA has been misleading when considering Canada’s overall refugee policy,” Barutciski said.

“Let us look at the full picture before treating this issue as a moral crusade. An appeal in this particular case would at least give Canadians a clearer picture of all the rights and obligations involved when cooperating with our continental partners on refugee protection,” he said.

But refugee advocates and church groups are heartened that a federal judge has taken their concerns about upholding human rights at the border to heart and will continue to argue for the end of the agreement with the United States.

“Christians and those from other faith communities see welcoming the stranger as a key tenet of their faith,” said Peter Noteboom, general secretary of the Canadian Council of Churches.