The highest court in the country has decided to keep intact the agreement between Canada and the United States which allows the return of asylum seekers who have crossed the border between the two countries, for the moment, judging that this agreement does not does not violate their rights to life, liberty and security.
The unanimous decision of eight judges, rendered Friday morning, concludes that the Agreement on safe third countries does not contravene federal law on immigration or section 7 of the Canadian Charter of Rights and Freedoms. No judge recorded a dissent.
“In my opinion, the record does not support the conclusion that the American detention regime is fundamentally unfair,” wrote Judge Kasirer, who signed the judgment on behalf of his colleagues, seven of whom had been since Judge Brown’s departure.
Through the Safe Third Country Agreement, which came into effect in 2004, Canada recognized the United States as a safe place where asylum seekers can seek and obtain protection.
Under this agreement, refugees must seek asylum in the first of the two countries they arrive in. Until a recent amendment to the agreement, asylum seekers could avoid being sent back to the United States. United by crossing the border between official entry points, which has given rise to places of passage such as Roxham Road in Quebec.
Another equality appeal
At the same time, the judges refer to the Federal Court the task of examining whether the agreement respects section 15 of the Charter, in order to verify whether it contravenes the principle of gender equality. Neither the Federal Court nor the Federal Court of Appeal had decided this question.
“This remedy is based on the argument that the legislative scheme is harmful to women who fear persecution because of their gender,” the decision states.
The Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International Canada have joined individual plaintiffs in challenging the legality of the Safe Third Country Agreement. These people all arrived in Canada from the United States in 2017 to seek asylum, claiming, for example, to flee sexual violence perpetrated by gangs in their country of origin.
The legal challenge was based in part on the fact that in the United States there is not “sufficiently clear guidance given to immigration judges” regarding women who seek asylum on grounds such as gender-based violence.
Highest court explains that given the seriousness of the case, the size and the complexity of the case, it would not be “in the interests of justice” for it to examine the violation itself of the right to equality, guaranteed by section 15 of the Charter. The facts and evidence will have to go through the legal process again: be examined by lower courts, with the possibility of appeal.
No automatic detention
The plaintiffs in this case primarily attacked the idea that the United States is actually safe for asylum seekers because their rights to life, liberty and security are violated upon removal to the American side. The principle of international law of non-refoulement of refugees as well as the conditions of detention were among others invoked. The Federal Court initially agreed with them, which was overturned on appeal.
However, for the Supreme Court, the demonstration has not been made that detention becomes “automatic” during a refoulement to the United States. “The purpose of this review is not to establish whether the right of asylum in the United States reflects the state of Canadian law,” the judgment states.
“Our Court is not charged with assessing the merits of Canadian immigration policies, a matter that the courts are not institutionally designed to assess, let alone reform,” it writes, but rather to ensure that Canadian law provides recourse for people who fear that their rights will be violated.
In general, the legal remedies available to asylum seekers are not “illusory”, as the Federal Court judge had said, but on the contrary represent sufficient “safety valves”.
In other words, “the discretionary exemptions provided by the legislative scheme ensure compliance with the principles of fundamental justice”. Canadian law provides exceptions for unaccompanied minors and migrants who have family in Canada.
Immigration, Refugees and Citizenship Minister Sean Fraser welcomed the Supreme Court’s decision on Friday. He sees in this judgment the proof that “the system, in the United States, works”, and that the two countries can continue their collaboration to regularize the migration of vulnerable people.
During the visit of US President Joe Biden last March, an additional protocol already signed in 2022 was made public. Ottawa and Washington then announced that the treaty would apply to all of the 8900 kilometers of the common border, including the places between the official crossing points.
This is the second time the Agreement has been challenged in court by these same groups supporting the individual plaintiffs. The applicants, who are citizens of El Salvador, Ethiopia and Syria, arrived at a Canadian land port of entry from the United States and claimed asylum.