Supreme Court refuses to hear Safe Third Country case

On February 5, a three-judge panel of the Supreme Court of Canada rejected an appeal application that sought to have the Safe Third Country Agreement (STCA) deemed unconstitutional.

 The appeal came from the Canadian Council for Refugees (CCR), the Canadian Council of Churches and Amnesty International. These three organizations, together with Colombian refugee ’John Doe,’ were appealing a Federal Court of Appeal’s decision to uphold the STCA.

The STCA legislates that refugees arriving in Canada through the US border are ineligible to make a claim in Canada. However, these organizations argued that some refugees denied entry into Canada cannot make a claim in the United States. Therefore, because the US does not provide protection to these refugees and does not comply with human rights obligations to refugees, it is an unsafe country.

According to the CCR, refugees in the US face a higher risk of detention in jails – sometimes for years at a time – which can leave them vulnerable to abuse. As well, US refugee practices have been known to discriminate on the basis of ethnicity, nationality or religion. And because refugee legislation is more restrictive in the US than in Canada, the STCA prevents many refugees who might have been accepted into Canada from being granted safe haven.

The STCA came into effect in 2004. It was signed as a measure of political and administrative convenience: since many refugees come to Canada through the US, the STCA was seen as a way to reduce the number of claimants in Canada, eliminating some of the backlog associated with processing refugee claims. The group’s original legal challenge against it was launched a year later, when it was brought to the Federal Court of Canada in December 2005. Justice Phelan of the Federal Court ruled that the US is an unsafe country, and struck down the STCA.

However, the Canadian government, which supports the STCA as it significantly reduces the number of refugee claims into the country, appealed this ruling. The Federal Court of Appeal then overturned Justice Phelan’s decision, stating, “That the US does not ‘actually’ comply [with international refugee rights obligations] is irrelevant.”

These organizations sought to have the Supreme Court of Canada hear the case and overturn the Appeal Court’s decision. However, with this most recent decision of the Supreme Court, the case will not proceed.

In a press release, Elizabeth McWeeny, CCR President, said, “This decision means that refugees will not have their day in court. The US is not in fact safe for all refugees, so we deeply regret that the Supreme Court has not taken this opportunity to ensure that Canada provides refugees the protection they need from forced return to persecution.”

The rejection of this latest appeal application will have devastating consequences for refugees who have landed in the United States. The STCA places refugees at risk of being deported back to the unsafe situations from which they fled, sometimes to face torture, persecution, or even death. Refugees who are particularly vulnerable to having their applications rejected include those fleeing persecution for their sexual orientation, women escaping domestic violence, and refugees from particular countries, such as Colombia.

According to the United Nations High Commissioner for Refugees, there are over 16 million refugees and asylum-seekers globally today. While Canada is one of the wealthiest nations in the world, we only accept a tiny fraction of this number each year. Out of the 300,000 immigrants Canada receives annually, only 10% are refugees.

The Supreme Court decision on the Safe Third Country Agreement is a disappointing announcement that undermines Canada’s international obligations to provide safe haven for those fleeing persecution.