Canada’s top court hearing challenge to US border asylum pact

Asylum seekers cross into Canada from the US border near a checkpoint on Roxham Road near Hemmingford, Quebec, April 24, 2022 [Christinne Muschi/Reuters]

Rights groups argue Safe Third Country Agreement violates Canada’s constitution and the rights of asylum seekers.

Montreal, Canada – Canada’s top court is set to hear a case that could upend a decades-old agreement that allows Canadian authorities to turn most asylum seekers away at the sprawling land border with the United States.

While global attention has largely focused on the US’s southern border with Mexico, human rights groups in Canada have long argued the situation at the northern border is equally precarious – and after a years-long court battle, their effort to end the Safe Third Country Agreement (STCA) is going before the Supreme Court of Canada in Ottawa on Thursday.

“We’re still holding our breath,” Peter Noteboom, general secretary of the Canadian Council of Churches, one of the groups involved in the case, told Al Jazeera ahead of the hearing.

“We’re very, very pleased that the Supreme Court agreed to hear the case,” said Noteboom, adding that a decision will only come in a few months, however. “It’s a very important moment to be able to make the legal case, but the conclusion of it won’t be known yet for some time.”

For years, rights advocates have tried to pressure the Canadian government to suspend the STCA, a deal that came into effect in 2004 and forces asylum seekers to make claims for protection in the first country they arrive in – either the US or Canada.

This means that people already in the US cannot make an asylum claim in Canada, or vice-versa, and allows border authorities to uniformly turn people back at official land crossings. But refugees can make claims for protection once on Canadian soil, and that loophole has pushed thousands to take informal routes across the 6,416km (3,987-mile) land border between the two countries.

While the deal has been criticised since its inception, and a previous legal challenge failed on technical grounds, the STCA came under renewed attention in 2017 when record numbers of asylum seekers crossed into Canada amid then-US President Donald Trump’s severe, anti-immigrant policies, including the so-called “Muslim ban”.

The groups challenging the STCA have accused Canada of violating the country’s constitution – the Canadian Charter of Rights and Freedoms – by automatically turning asylum seekers back to the US.

They said the US is not safe for many refugees, as the country subjects them to the threat of detention and other rights abuses, including a heightened risk of being returned to the home countries from which they fled.

Yet despite that, successive Canadian governments have insisted that the US is a safe country for refugees, offering them access to a robust asylum system. Last year, Immigration, Refugees and Citizenship Canada – a federal ministry – said the STCA “has served Canada well”.

“Canada remains firmly committed to upholding a fair and compassionate refugee protection system and the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims at the Canada-US land border,” it said.

The current government also argued in court that revoking the deal would lead to a surge in refugee claimants arriving at Canada’s border, adding more stress to the immigration system and causing delays.

But that argument was rejected as “weak” by the Federal Court, which in 2020 ruled that the STCA violated Section 7 of Canada’s constitution – the Canadian Charter of Rights and Freedoms – that sets out the right to “life, liberty and security”.

“The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty. The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA,” Justice Ann Marie McDonald wrote in the decision.

Julia Sande, human rights law and policy campaigner at Amnesty International Canada, another organisation involved in the case, said one of the key concerns has been the “risk that once returned to the US, they could be returned to their country of origin and be subject to torture.”

“This claim was brought under the Trump era, but it’s important to know that just because Trump is no longer in power, those safety concerns still remain,” Sande told Al Jazeera.

In advance of this week’s Supreme Court hearing, the Canadian Association of Refugee Lawyers pointed to an April report (PDF) by US-based group Human Rights First that documented how President Joe Biden’s administration continues to detain adult asylum seekers in the country.

Immigration detention, the report said, “fuels refoulement—illegal deportation of refugees to persecution and torture—because detention diminishes access to counsel, interferes with fundamental due process protections, and exacerbates the fundamental flaws of the expedited removal process”.

Meanwhile, as advocates await the Supreme Court’s decision in the next few months, the Reuters news agency reported in late September that the number of asylum seekers entering Canada at unofficial points along the US border had reached the highest level since 2017.

More than 23,300 people crossed into the country through the first eight months of 2022, according to data collected by the Royal Canadian Mounted Police (RCMP), 13 percent higher than the figure recorded for all of 2017.

Sande said she was hopeful that the Supreme Court would offer “strong language on Canada’s duties to refugees” in its eventual ruling, and agree with the Federal Court that the STCA is unconstitutional.

She stressed that the agreement does not stop asylum seekers from seeking protection in Canada, but instead, “all it does is force people to cross at unofficial land ports of entry, sometimes in very dangerous and unsafe conditions“.

“If people are fearful for their lives and are afraid that they might be tortured or killed … [they will] do what [they] can to seek safety. And so all this does is push people further into unsafe situations just so they can make a claim for refugee protection.”




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