Seriously, who thought Canadian Supreme Court justices were going to strike down an international refugee treaty with the United States?
This immense challenge, which affects all of humanity, will grow in the years to come. Its solution, its solutions will be above all political, not legal.
I understand Amnesty International, I understand asylum seekers, I understand their humanitarian struggle. But it is not before the judges that this issue must be dealt with, and the Court said it unanimously (with eight judges, but if the resigning judge Brown had been able to sign, it would have been 9-0) .
“Our Court is not tasked with assessing the merits of Canadian immigration policies, a matter that the courts are not institutionally designed to assess, let alone reform,” wrote Justice Nicholas Kasirer, in as a warning. “Our Court is not called upon to resolve the thorny question of irregular entries into Canada via border crossings other than official land entry points,” he adds.
The central question the Supreme Court had to answer was whether the “Safe Third Country” Agreement with the United States violates migrants’ right to life and security.
What is at stake here is the fate of migrants arriving at a Canadian border crossing from the United States. Under the Agreement, regardless of their first country of origin, they are returned to American territory. This happened in particular to an Ethiopian and a Syrian woman, who were applicants in this case. The idea of the Entente is for refugees to seek asylum in the first “safe country” they set foot in.
In the case of these women, they had passed through the United States, presented themselves at a Canadian border crossing and were immediately returned to American territory. They were detained for several weeks in the United States. To check their health, first. Then with common law criminals, in a poorly heated prison. Is this such inhuman treatment as to engage the responsibility of the Canadian government?
It goes without saying that the Supreme Court cannot give orders to the authorities of the United States, or of any other state. But it can control the legality of the actions of the Canadian government when it does business with a country that does not respect fundamental rights. For example, the Court will refuse to return to his country a person wanted for a crime if torture awaits him. The Court has already ruled that a person wanted by the police cannot be returned to the United States if they risk the death penalty – a Canada-US treaty allows for a prison sentence to be demanded instead.
In other words, the Canadian government cannot wash its hands of the fact that rights violations that it could prevent are taking place outside its territory.
Except that here, the evidence does not reveal any systematic or unacceptable abuse of rights. One can criticize the American approach, but the United States is still a State of law. Recourse to the courts to control the legality of a detention (habeas corpus) exists and it is not true that the detention there is “systematic” or inhuman, says the Court.
Designating a “safe” third country does not mean that the country must “have human rights policies or records that are identical to those of Canada, as long as the designated countries meet certain minimum requirements”.
There remains a piece of contention, which will return to the Federal Court: it will be alleged that the net effect of the agreement creates discrimination against women. I would not bet dearly on the success of this new version of the same problem, which risks finding the same legal solution.
Implicit here is the concept of “international courtesy”. It is a sort of judicial diplomacy, a restraint, not to say a reluctance, that the courts show when it comes to judging foreign systems, and especially the United States.
Whatever one thinks of this agreement, in the absence of proof of serious and untenable violation by the Americans of the rights of the refugees deported by Canada, the Court will not interfere. She does not have the competence to do so. This is clearly a political area, which involves relations with the main ally, economic partner, friend, neighbour, etc. from Canada. Partner who happens to share 8891 km of border.
This obviously does not resolve the case of this agreement, which is open to criticism in several respects. Nor the fate of migrants.
But the cancellation of a treaty is not so simple. In the subtle game of international relations, what we decide to cancel on the left can lead to retaliatory measures on the right.
In any case, it is up to the Trudeau government to renegotiate this agreement, not to the judges, and the thing is clearly said.