Canada-US “Safe Third Country Agreement” Violates Charter Rights, Federal Court Rules

Canadians hold protests and vigils demanding more refugee-friendly policies in the aftermath of the heart-rending drowning death of Syrian toddler, Aylan Kurdi, in 2015. (Photo credit: No One Is Illegal/Facebook).

By Obert Madondo | @Obiemad

Canada’s so-called Safe Third Country Agreement, or STCA, with the United States violates rights and freedoms protected by the Canadian Charter of Rights and Freedoms, the Federal Court ruled last week. Justice Ann Marie McDonald found that the STCA violated section 7 of the Charter, which guarantees everyone “the right to life, liberty and security of the person”.

The case spotlighted the United States’s increasingly hard-line immigration policy and foreign policy in the post 9-11 era, and their impact on Canada’s refugee protection policy and practices.

Canada designated the U.S. a “safe” country for refugees when the STCA, signed in December 2002, came into effect in December 2004. Under the agreement, most asylum seekers entering Canada from the U.S. through land ports are automatically denied the opportunity to seek a safe haven in Canada on the contested notion that the U.S. is a “safe” country for refugees. The U.S. is currently “the only country that is designated as a safe third country by Canada under the Immigration and Refugee Protection Act.”

A 2013 report from the Harvard Immigration and Refugee Clinic (HIRC) gave both Canada and the U.S. a failing grade on the refugee protection file. The report, “Bordering on Failure: Canada-U.S. Border Policy and the Politics of Refugee Exclusion,” examined Canadian border measures designed to intercept and deflect “undesirable travelers,” including asylum seekers, before they set foot on Canadian soil and make a claim.

Deborah Anker, a Harvard law professor, co-founder of the Harvard Immigration and Refugee Clinical Program and author of a treatise on U.S. asylum law, supervised the creation of the report.

“This report points to an alarming trend,” she said then, adding:

In the past, Canada provided the model upon which fairer treatment of refugees and better asylum processes developed in the United States. This report shows a deteriorating trend in Canada, and is quite disturbing.

The Charter

The STCA case, Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship), was brought forward by the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, in 2017. In their challenge, the three organizations had argued that sending refugee claimants back to the U.S. violated sections 7 and 15 of the Charter of Rights and Freedoms.

Section 7 of the Charter states:

Everyone has 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.

Section 15 of the Charter states:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

The Canada Border Services Agency recently confirmed turning back 21 asylum seekers who tried to enter Canada from the U.S. in May 2020 alone. According to The Intercept:

It is Canada Border Services Agency policy to notify U.S. Customs and Border Protection whenever a claimant is turned back from the border, which can result in detention for refugees without valid U.S. visas. Immigration detention centers in the U.S. are rife with reports of abuses, including sexual assault, inadequate food, lack of medical care, and racism.

scathing report issued by Amnesty International in October 2018 highlighted the “brutal toll of the Trump administration’s efforts to undermine and dismantle the US asylum system in gross violation of US and international law. The cruel policies and practices documented include: mass illegal pushbacks of asylum-seekers at the US–Mexico border; thousands of illegal family separations; and increasingly arbitrary and indefinite detentions of asylum-seekers, frequently without parole.”

Nedira Mustefa, a Muslim woman from Ethiopia, was one of the applicants in the STCA challenge. According to the Federal Court’s STCA document, she claimed to have suffered “a terrifying, isolating and psychologically traumatic experience” after being held in solitary confinement in the U.S. following her failed attempt to apply for refugee protection in Canada.

In her ruling, Justice McDonald concluded that the applicants had established a breach of section 7 of the Charter:

The Applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the US… The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by US officials. In my view, the risk of detention for the sake of ““administrative”” compliance with the provisions of the STCA cannot be justified. Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. 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 or the foundational Conventions upon which it was built.

For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.

“The Court found that sending refugee claimants back to the U.S. violates their Charter right to liberty and security of the person because many of them are arbitrarily detained in the US in immigration detention centres or county jails, often in atrocious conditions and in clear contravention of international standards,” said the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches in a joint press release.

Trump’s executive orders

Since Trump’s election in 2016, thousands of people who had initially fled their home countries for the U.S., have fled the U.S. and sought refuge protection in Canada. In 2017, Trump’s first year in the White House, more than 50,000 people, more than twice the 2016 figure, requested asylum protection in Canada.

 Soon after assuming office in January 2017, Trump issued three executive orders on immigration, namely, “Border Security and Immigration Enforcement Improvements”, “Protecting the Nation from Foreign Terrorist Entry into the United States”, and the “Enhancing Public Safety in the Interior of the United States“, an executive order suspending the US Refugee Admission Programme for 120 days. The third executive order also banned Muslims from Libya, Iran, Iraq, Somalia, Sudan, Syria and Yemen, from entering the United States. It deliberately linked immigration to terrorism:

Numerous foreign-born individuals have been convicted or implicated in terrorism-related crimes since September 11, 2001, including foreign nationals who entered the United States after receiving visitor, student, or employment visas, or who entered through the United States refugee resettlement program.

Critics have argued that Trump’s immigration policies jeopardized the United States’ compliance with the Convention against Torture, the Convention on the Elimination of all forms of Racial Discrimination, the 1967 Protocol Relating to the Status of Refugees, and numerous other international human rights treaties.

#WelcomeToCanada

In 2014, the Federal Court of Appeal ruled that former prime minister Stephen Harper’s Conservative government’s cancellation of federal healthcare for refugees was “cruel and unusual” treatment of the “vulnerable, poor and disadvantaged” seeking Canada’s protection. It’s the kind of treatment that “shocks the conscience and outrages Canadian standards of decency.”

In the fall of 2015, progressives across the country celebrated the end of the Harper era. They breathed a huge sigh of relief after Prime Minister Justin Trudeau assumed the reins of power the Liberals’ majority victory during the October 2015 federal election. They celebrated the new era of “compassion” promised by Trudeau. In January 2017, the prime minister issued a powerful Canadian message heard around the world. Trudeau tweeted:

To those fleeing persecution, terror & war, Canadians will welcome you, regardless of your faith. Diversity is our strength #WelcomeToCanada.

Since then, the media has often framed Trudeau’s openness to immigrants and racial diversity as a rebuttal of Trump’s “America First” policies. But, even before Trump, human rights defenders and critics of the STCA had often argued that the Bush-era agreement soiled Canada’s welcoming reputation by preventing refugees coming from the US from seeking asylum in Canada.

According to the Canadian Council for Refugees, the STCA “closes the door on most refugee claimants presenting themselves at an official port of entry at the US-Canada border: instead of being allowed to enter Canada to make a refugee claim, they are sent back to the US, where many are put into immigration detention.”

According to Amnesty International, “Since 2017, US authorities have also imposed a policy of mandatory and indefinite detention of asylum-seekers, frequently without parole, for the duration of their asylum claims. This constitutes arbitrary detention, in violation of US and international law.”

Perilous boarder crossings

In 2017, Trump’s first year in the White House, at least 50,000 people, more than twice the 2016 figure, requested asylum protection in Canada. A significant percentage of the people who have fled the U.S. and sought asylum in Canada since Trump’s election have undertaken irregular, perilous border crossings fraught with deadly frostbite, and even death. In an eye-opening, Feb. 27, 2017, article entitled, “Losing Hope in U.S., Migrants Make Icy Crossing to Canada“, The New York Times highlighted the injuries, pain and suffering endured my some of the asylum seekers:

On Christmas Eve, two Ghanaians were picked up on the roadside north of town, some 10 hours after they had set off into a field near the border, sinking to their waists in snow. The temperature that morning was reported to be below zero, with windchill making it even worse. The men’s hands were so badly frostbitten that they lost almost all their fingers.

In her ruling, Justice McDonald wrote:

Although the US system has been subject to much debate and criticism, a comparison of the two systems is not the role of this Court, nor is it the role of this Court to pass judgment on the US asylum system. The narrow focus here is the consequences that flow when a refugee claimant is returned to the US by operation of the STCA. 

Contested U.S. “safe” country designation

Since Trump’s move into the White House, Canadian and U.S. law professors, human rights organizations, refugee rights defenders, and political parties, have repeatedly demanded that Canada either suspend the STCA or withdraw from the pact altogether.

Deborah Anker, the Harvard law professor and U.S. asylum law expert, offered her expertise in support of the STCA legal challenge. In her affidavit, filed in 2017, she stated that the U.S. then operated “the largest immigration detention system in the world”.

In a letter addressed to Prime Minister Justin Trudeau, Anker discussed the impact of Trump’s executive orders on asylum seekers. She argued that the orders were “based on erroneous assumptions about the criminality and extremist tendency of the immigrant population.” Anker’s letter introduced a Harvard University Law School review that urged the Trudeau government to to reconsider the STCA.

In May 2017, the Canadian Council for Refugees and Amnesty International submitted a 52-page brief, “Contesting the Designation of the US as a Safe Third Country” (pdf), to the Canadian government.

Over 200 law professors from across Canada, signed an open letter (pdf) demanding an immediate suspension of the STCA, arguing that Trump’s policies and statements on immigration were “inconsistent with international law”. According to the letter, spearheaded by Osgoode Professor Sean Rehaag, an experts in Canadian immigration and refugee law:

We condemn these actions and statements in the strongest possible terms. They reflect the very bigotry, xenophobia and nativist fear-mongering that the international refugee regime was designed to counteract. We also note that they are inconsistent with the 1951 Refugee Convention, the Convention Against Torture, the UN Declaration of Human Rights, the International Covenant on Civil and Political Rights, and many other international human rights instruments.

The Canadian Civil Liberties Association condemned trump’s “Protecting the Nation from Terrorist Attacks by Foreign Nationals” executive order, noting “its impact on permanent residents, dual citizens, U.S. green card holders, and refugees fleeing persecution and seeking asylum in Canada.”

Justice McDonald suspended the enforcement of her decision for six months to allow the government time to respond.

“While the Federal Court has provided the government with six months leeway, it is imperative that Canada immediately end the return of claimants to the US,” said Alex Neve, the secretary general of Amnesty International Canada. “The Safe Third Country Agreement has been the source of grave human rights violations for many years, unequivocally confirmed in this ruling. That cannot be allowed to continue one more day; and is of even greater concern now given the prevalence of COVID-19 in immigration detention in the United States. Canada should further revoke the Order in Council which practically closes the border to refugee claimants as part of Canada’s COVID-response.”

Obert Madondo is an Ottawa-based blogger, photographer, digital rights enthusiast, former political aide, and former international development administrator. He’s the founder and editor of these blogs: The Canadian ProgressiveZimbabwean Progressive, and Charity Files. Follow him on Twitter: @Obiemad