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Why the Safe Third Country Agreement must go

Despite what the Federal Court of Appeal has ruled, it’s unconstitutional to send asylum seekers back to the U.S.

By: and /
1 June, 2021
A family of four from Pakistan walk down Roxham Road in Champlain, New York, towards the U.S.–Canada border in February 2017. Geoff Robins/AFP via Getty Images

Last July, Canada’s Federal Court judged as unconstitutional the Safe Third Country Agreement (STCA), which allows Canada to send refugee-claimants at the Canada–U.S. border back to the United States, despite the risk they will be detained and eventually returned to their countries of origin without their refugee claims being assessed.

The Canadian government appealed to the Federal Court of Appeal, which, this April, ruled in the government’s favour. It found “no evidence” that the treatment of returnees at the Canada-U.S. border “shocks the conscience,” a term referring to the legal test under the Charter of Rights and Freedoms to determine whether a deportation is contrary to the principles of fundamental justice.

The court reached this conclusion despite the testimony of 10 individuals who were transferred by Canadian border officers to the U.S. immigration system and considerable expert evidence detailing the automatic detention of claimants and the terrible conditions within detention centres in the U.S. Essentially, the Court of Appeal did not believe that detaining someone for attempting to make a refugee claim in prison-like facilities, where some are subjected to solitary confinement and the risk of sexual violence, was a violation of Charter rights.

By contrast, in concluding that the STCA was unconstitutional, the Federal Court had relied on evidence such as that given by Nedira Jemal Mustefa, one of the named applicants in the case and an asylum seeker from Ethiopia. Mustefa detailed what she called a “terrifying, isolating and psychologically traumatic experience.” She described being placed in solitary confinement and then transferred to a “freezing cold” facility without blankets. She was fed pork despite being Muslim and was detained alongside people with criminal convictions.

Immigration Minister Marco Mendicino and Public Safety Minister Bill Blair responded to the Court of Appeal’s ruling with a joint statement: “Canada remains firmly committed to upholding a fair and compassionate refugee protection system and the STCA remains a comprehensive means for the compassionate, fair, and orderly handling of asylum claims at the Canada-U.S. land border.”

The STCA is an affront to the international legal obligations Canada purports to uphold and the claimants in this case will appeal the decision to the Supreme Court of Canada. In the meantime, Canada should simply do the right thing and suspend it.

Canada’s international and constitutional obligations

Under both international and domestic law, Canada’s refugee policies must not violate international treaties such as the Refugee Convention and the Torture Convention. Accordingly, Canada cannot directly or indirectly breach the principle of non-refoulement, which prohibits the deportation of persons to countries where they would be at risk of persecution and torture.

Fulfilling these obligations means that when partnering with countries in a “responsibility-sharing agreement,” both partners must fully assess whether a person may be at risk of persecution or torture before sending them back to their country of origin. The American refugee determination system has concerning shortcomings that not only violate international law but, in the opinion of the Federal Court, also violate the Charter of Rights and Freedoms.

In overturning the lower court’s decision, the Federal Court of Appeal focused on how the government determines that the U.S. is a safe third country. That designation is what allows Canada and the U.S. to jointly manage refugee claims at our shared border. But evidence discounted by the Federal Court of Appeal documents an immigration system in the U.S. that some international lawyers argue amounts to crimes against humanity.

America’s policies and practices include arbitrary detentions, the forcible transfer of infants and children from their parents – of which many were sexually abused and hundreds are still missing – forced and unnecessary medical procedures, and inhumane detention conditions such as holding women and children in cages or frigid holding cells, and denying them soap or toothbrushes.

These practices did not start or end with former U.S. president Donald Trump. Rather, they are part of a continuous policy to discourage migration, including by those fleeing violence and persecution, often as a by-product of U.S. foreign policy — including, for example, its past support of right-wing military regimes in Central America, resulting in refugee-producing oppression and conflict.

Joe Biden’s nascent presidency has not yet ushered in any meaningful changes to America’s immigration policies. Children are still detained in inhumane conditions and hundreds of thousands of migrants have been turned back since January 2021.

“U.S. authorities routinely deport women escaping gender-based persecution and individuals fleeing gang violence. In Canada, these persons might otherwise qualify for refugee protection.”

Moreover, the U.S. has narrower criteria than Canada for determining refugee status. This means U.S. authorities routinely deport women escaping gender-based persecution and individuals fleeing gang violence. In Canada, these persons might otherwise qualify for refugee protection. In one recent investigation by Human Rights Watch, researchers found hundreds of deportees from the U.S. to El Salvador were killed, disappeared, or subjected to sexual violence, torture, and other harm.

Within this context, it is inexplicable that the Canadian government continues to characterize the STCA as compassionate.

Canada does not have a refugee crisis

Canada’s border is not only well equipped to process refugee claimants, but it also faces a relatively small flow of asylum seekers compared to other countries. On average, Canada receives less than 0.3 per cent of the world’s refugees. Since January 2021, about 500 asylum seekers arrived at Canada’s land borders, while fewer than 9,000 asylum seekers made claims by land last year. At its height in 2018, Canada saw just over 40,000 asylum seekers arrive by land, which would have been about 0.1 per cent of Canada’s total population at the time.

In fulfilling our international obligations, we should not defer our responsibility to a state that does not meet minimum standards in refugee determinations. We should use the systems we have designed — systems that are seen as the gold standard all over the world — and assess for ourselves whether persons coming before us are refugees. In no other area of our jurisdiction has Canada willingly given so much power to a foreign state to make decisions for us.

What happens next

The Federal Court of Appeal’s decision is not the end of the story. The named applicants and the advocates representing the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches will appeal this decision to the Supreme Court of Canada.

In the meantime, Canada has an opportunity to make its policies match its rhetoric by suspending the STCA. The government has rightfully championed justice and accountability abroad, recognizing the hardships that force people to run from their homes. But when it champions international law, Canada cannot make an exception for itself.

Prime Minister Justin Trudeau has publicly proclaimed our “moral responsibility to help refugees … find shelter and start their lives anew.” During the pandemic, Canada has also recognized the public health dangers of contracting COVID-19 in prisons and has released significant numbers of immigration detainees from the Canadian detention system. The STCA is antithetical to these values. With U.S. immigration reforms stalling and the COVID-19 pandemic augmenting the dangers of detention, this agreement risks harming individuals in enduring and permanent ways.

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