The Supreme Court of Canada is considering Thursday a challenge to the Safe Third Country Agreement, which is at the heart of the irregular crossings of migrants through Roxham Road, in Montérégie.
Each of the claimants, who are citizens of El Salvador, Ethiopia and Syria, were turned away after arriving in Canada through an official border crossing from the United States with the intention of seeking asylum.
According to them, their removal put them at risk of detention and other violations of their rights. Their lawyers believe that the Safe Third Country Agreement violates section 7 of the Canadian Charter of Rights and Freedoms which guarantees “the right to life, liberty and security of the person”.
At the opening of the Supreme Court hearing on Thursday, a lawyer for the Canadian Council for Refugees argued that the risk of imprisonment is sufficient to find unconstitutionality.
“We say there is default detention,” said Me Andrew J. Brouwer.
When the judges asked him if it was “automatic” that returned migrants would be detained, he replied that it was “impertinent” to make this determination to find a violation of Article 7.
“What does the (detention) data show? “, in particular launched the judge Russell Brown. He did not manage to obtain a direct answer to his question, also formulated several times by Judge Malcom Rowe.
“It is the risk that implies freedom. This does not require that all refouled persons […] be detained,” argued Me Brouwer.
Judge Suzanne Côté also joined in by saying that only one of the three asylum seekers involved in the case examined by the Court was detained in the United States.
“The evidence (points to) a robust detention regime in the United States that includes the right to consult an attorney. I understand your point that (asylum seekers) are deported immediately, but they are not deported in a vacuum,” she said.
Mr. Brouwer specified that the asylum seekers involved in this case who were not detained were not because they were finally able to obtain authorization to remain in Canada.
Suspension of the agreement requested
The Safe Third Country Agreement ensures that a potential refugee presenting himself at an official Canadian border crossing and having first set foot on American soil is turned away since he must pursue his asylum application in the first “place sure” where it arrived.
Thus, people still wishing to seek asylum in Canada cross the Canada-US border through makeshift crossings, such as Roxham Road in Montérégie. Once they are in Canada, their refugee claim can be processed.
The issue recently resurfaced in the news, when Radio-Canada reported that the federal government spent more than half a billion dollars in public funds on Roxham Road. The impressive sum was used to reimburse costs paid by Quebec and to pay installation suppliers, for example.
The Bloc and New Democrats have long called for the suspension of the Safe Third Country Agreement. Justin Trudeau’s Liberals are instead pleading for a modernization of the agreement and ensuring that they are negotiating in this direction with the Americans.
“Obviously, we have concerns [au sujet de] the agreement. […] We will always make sure that our principles and values in terms of immigration and human rights are respected,” Prime Minister Justin Trudeau said Thursday morning as he went to a meeting with his Council. ministers.
He said that Ottawa relies on the United Nations High Commissioner for Refugees to verify that the rights of rejected migrants are respected.
Thursday, the nine judges of the Supreme Court must hear other speakers during the hearing. In particular, they will have the opportunity to question representatives of the federal Department of Justice who will defend the Department of Immigration.
In lower courts, the Canadian government has argued that rejected plaintiffs have access to a fair and equitable process in the United States. Ottawa argues that it is not unreasonable to send people south of the border to seek asylum there.
Long-standing record
Refugee advocacy groups have long opposed the deal, arguing that the United States is not always a safe place for people fleeing persecution.
Many refugee claimants have fought this battle in Federal Court alongside the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International.
In a 2020 decision, Federal Court Judge Ann Marie McDonald found that the Safe Third Country Agreement had the effect of sentencing applicants found ineligible to prison in the United States.
Justice McDonald wrote that the detention and its consequences are inconsistent with the spirit of the law and its purpose. She considers this to be a violation of section 7 of the Canadian Charter of Rights and Freedoms.
However, the Federal Court of Appeal overturned this decision last year.
According to the appeal court, the constitutional fault is caused by the way in which the authorities interpret the application of the agreement and not by the agreement itself. The court adds that since the plaintiffs do not attack the faulty behavior of the authorities, it does not have the evidence necessary to rule.
With information from Jim Bronskill