Justice for Refugees: Fighting the Safe Third Country Agreement

The Safe Third Country Agreement has been a key issue for churches and refugee support groups over the past few years. Although a coalition is asking the Supreme Court to review the Agreement, no political party has specifically addressed the Agreement. CPJ offers this update by Andrew Brouwer, former CPJ staffer and current refugee lawyer.

The Safe Third Country Agreement has been in place since 2004. This agreement between Canada and the US allows each country to refuse to consider claims for asylum from people arriving at their mutual border. While in theory the agreement applies both to refugees seeking to enter the US from Canada and from Canada to the US, in reality the vast majority of refugees crossing the Canada-US border are seeking protection in Canada.

In the first year after the Agreement took effect, the number of refugee claims at the Canadian border dropped by more than half, to about 4000. While numbers have increased somewhat since then, only those who can demonstrate that they meet one of the narrow exceptions to the agreement – for example, if they have a close family member in Canada who has status – are allowed in. Those who do not meet one of the exceptions are ineligible to have their claims considered by Canada if they come to one of our land borders. Their only choice is to try and have their asylum claims considered by US asylum authorities.

While the US accepts many refugee claims each year, many more are denied the opportunity to have their asylum claim heard due to arbitrary rules that breach international law, and many other refugees are denied protection due to restrictive interpretations of refugee that likewise do not conform with international norms.

Other violations of refugees’ human rights include the practice of detaining asylum-seekers, including children, and refugees of particular ethnic or religious backgrounds (Arabs, Muslims) and nationalities. Most affected by these gaps and flaws in the US system are women fleeing domestic violence, gays, lesbians and transgendered persons fleeing persecution based on sexual orientation, Arabs, Muslims and refugees from particular countries, notably Colombia.

In December 2005, on the one year anniversary of the agreement’s implementation, the Canadian Council of Refugees, together with the Canadian Council of Churches and Amnesty International joined with “John Doe” to file a challenge to the legality of the agreement in the Federal Court. Armed with expert opinions from leading authorities on both international refugee law and US refugee law and practice, they argued that the US does not live up to it international obligations with respect to refugees, and that by closing the border to refugee claimants seeking protection in Canada our government was in breach of the Charter and international law. In November 2007, a judge of the Federal Court agreed.

As expected, the government of Canada appealed the decision to the Federal Court of Appeal. Unfortunately, the Federal Court of Appeal overturned the Federal Court’s decision. Though the appeal judges did not dispute the finding that the US violates its obligations under international refugee law and that the Agreement puts certain groups of refugees in real danger of persecution and torture, Justice Noel, writing for the majority, decided that this was “irrelevant.” All that matters, according to the appeal court, is that before entering into the Agreement, Cabinet “considered” the US asylum system and its human rights record (among other factors). Since there was evidence that a memo had been put before Cabinet for consideration prior to entering into the Agreement, this requirement had been satisfied.

In an aspect of the case with historical echoes, the Court of Appeal also determined that the organizations should not have been allowed to bring the case to court in the first place – that only an individual refugee who has been denied access to Canada under the Agreement can challenge the legality of the Agreement.

The matter is now before the Supreme Court of Canada, who must first decide whether or not to allow the case to proceed to a full hearing. If they do, the case will go before a full panel of the Supreme Court. On September 26, the applicants asked the Court to consider their case.

The case is sure to have major implications, and not just for the thousands of refugees at risk in the US who have no access to protection anywhere because of the agreement. The fact is, the Canada- US agreement is merely the first brick in a wall that some government officials undoubtedly hope will one day keep out refugees from many other countries and parts of the world as well.

The Supreme Court’s decision is therefore likely to affect the terms and conditions under which Canada may enter into similar agreements with other countries in the future. And finally, considering the excellent reputation of Canada’s Supreme Court, it can be expected that the manner in which the Court deals with this precedent-setting case will have ripples in court rooms around the world.

Question for candidates:
Will your party repeal the Safe Third Country Agreement?

Links for more information:

• Canadian Council for Refugees
• Canadian Council of Churches
• Amnesty International