Court denies Safe Third Country Agreement appeal

(Photo by Mikhail Kusayev,

But advocates vow to continue ways to nullify refugee agreement

By Michael Swan, The Catholic Register

Refugee advocates say the long legal battle to strike down Canada’s Safe Third Country Agreement with the United States is not over, despite the Supreme Court of Canada narrowing the chances for refugees and their allies who insist that passing through the United States should not nulify any refugee’s right to seek asylum in Canada.

In a unanimous, 8-0, ruling, Canada’s top court acknowledged that asylum seekers turned back at Canada’s border are at risk of detention in the United States, and from there are sometimes sent back to dangerous situations in countries they originally fled.

But the court decided these risks were acceptable because the American refugee determination system, and the power of Canada Border Service Agents to make exceptions, amount to legal “safety valves” that could prevent the return of refugees to failed states, persecution, arbitrary arrest and death.

“In Canada, as in the United States, these risks are within mutually held norms accepted by our free and democratic societies,” Justice Nicholas Kasirer wrote as he ruled that the Safe Third Country Agreement does not violate Section 7 of the Charter or Rights and Freedoms — “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 reality of those safety valves leaves genuine refugees fighting for their lives in arcane legal battles on both sides of the border, said Canadian immigration lawyer and director of the University of Detroit Mercy School of Law’s immigration law clinic Alex Vernon.

“I spent the day (of the Supreme Court’s decision) working on a desperate case of family reunification with a refugee claimant in Canada, despairing of ever seeing her spouse again, as he is currently detained in the U.S. and facing deportation to his country of persecution,” Vernon wrote in an email.

Canadian Council of Churches general secretary Rev. Peter Noteboom said it was significant that the court did acknowledge risks to the Section 7 rights of refugees. The Canadian Council of Churches — which includes the Canadian Conference of Catholic Bishops, along with Canada’s largest Protestant and Orthodox churches — will carry on the legal fight, Noteboom said.

“The legal process will definitely continue,” he said.

The grounds for the next suit in Federal Court will be whether or not the U.S.-Canada agreement on refugees violates equality rights guaranteed by Section 15 of the Charter. The Supreme Court found that the Federal Court’s 2020 decision striking down the agreement had been mistaken in failing to rule on the equality rights issue.

The eight refugees named in this case, supported by the Canadian Council of Churches, Amnesty International-Canada and the Canadian Council for Refugees, have argued that sending refugees back to the United States violated the equal rights of women, gay men, lesbians and transgender people because the U.S. refugee system will almost never grant refugee status based on gender violence.

The Supreme Court specifically allowed and encouraged the litigants to go back to the Federal Court to ask for a ruling on equality rights.

Canadian Council of Churches president Das Sydney insisted the fight against the Safe Third Country Agreement is not about abstract legal principles.

“We cannot be blind to the human dimension,” he told an online press conference after the ruling came down on June 16.

Afghan refugee Naqib Sarwary, who entered Canada at Roxham Road several years ago, warned that his own experience tells him refugees will continue to cross the border, even after the agreement was expanded in March to cover all border crossings — whether at official border posts or through a farmer’s field. The more comprehensive agreement announced by Prime Minister Justin Trudeau and U.S. President Joe Biden in Ottawa will only encourage asylum seekers to look for help from smugglers and try more dangerous routes, Sarwary said.

Ottawa just wants people to arrive in Canada through “normal pathways,” Immigration Minister Sean Fraser said, asserting that Canada has a right to manage an orderly flow of refugees.

The churches and refugee rights groups have opposed the 2002 Safe Third Country Agreement since it came into effect in 2004. In 2007 the organizations persuaded the Federal Court to strike down the agreement, but had that decision overturned on appeal on the grounds that they did not have standing to bring the matter to court.

In 2017 the organizations launched another legal challenge, this time with the participation of eight refugees variously from El Salvador, Ethiopia and Syria. Again the Federal Court in 2020 ruled in their favour, but had that decision overturned. The appeal court held that the case should have focused more on the ongoing process by which Canada certifies that the United States is safe for refugees.