November 21, 2019

Will the Safe Third Country Agreement Survive a Federal Court Challenge?

Posted by Athena Portokalidis - Bellissimo Law Group PC

On November 8, 2019, the Federal Court of Canada heard closing arguments related to a challenge to the Safe Third Country Agreement (“STCA”). The STCA was signed by both of Canada and the United States of America (USA) in 2002, and came into effect on December 29, 2004.[1] The goal of the STCA is to help “both governments better manage access to the refugee system in each country for people crossing the Canada-U.S. land border” and applies to refugee claimants who seek entry to Canada from any Canada-U.S. land border crossings, by train, or at airports if they are seeking refugee protection in Canada after a failed refugee claim in the U.S. following deportation.[2]

In effect, the STCA works to send those seeking refugee protection back to the country in which they first arrived to apply for protection there, whether it be Canada or the USA. However, the STCA has a notorious loophole: those who enter Canada other than at an official border post are not covered by the STCA as it currently stands.[3]

The Canadian Council for Refugees (CCR), Amnesty International (AI), The Canadian Council of Churches (CCC), and an individual litigant and her children, initiated a challenge in the Federal Court of Canada of the designation of the USA as a safe third country for refugees in July 2017.[4] Among the reasons for the challenge was the argument that sending would-be refugee claimants back to the USA violates their Section 7 and Section 15 rights under the Canadian Charter of Rights and Freedoms (“Charter”).[5] They argued that refugees returned to the USA are at risk of refoulement (being forced to return) to persecution, torture and death; claimants are often unjustly detained in the USA, and women are disproportionately adversely affected by the “shortcomings in the US refugee protection regime.”[6]

Section 7 of the Charter guarantees everyone 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,” while Section 15 states that every individual “is equal before the law and has the right to equal protection and equal benefit of the law without discrimination”, including discrimination based on sex.[7] Given the wording of these sections, these rights seem to apply to individuals regardless of their status in Canada, unlike other sections of the Charter that specifically refer only to “citizens of Canada” as those entitled to the enumerated right, such as the right to vote or the right to enter, remain in, and leave Canada.[8]

However, section 7 of the Charter has a built-in limitation: that people can be deprived of the right to life, liberty and security of the person if such a deprivation is in accordance with the principles of justice. Similarly, section 1 of the Charter limits all otherwise guaranteed rights under the Charter “only to such limits prescribed by law as can be demonstrably justified in a free and democratic society.”[9] The way in which the Federal Court conducts its analysis of these rights in the impending decision will be vastly important for the outcome of the case.

On the other side, the lawyer for the government argued that “there’s no rights at stake here” and the Canadian government’s “continued reliance on the regime is lawful and meets its Charter and international law obligations.”[10]

The judge hearing the case has not yet provided a decision regarding whether the STCA should be suspended or maintained; her decision will be rendered at an undetermined future date.[11] It will surely be interesting to read the decision when rendered as its implications could be life-changing for many.