Canada-U.S. Safe Third Country Agreement Ruling

"Sharing responsibility for refugee claims with another state will necessarily expose returnees to the foreign legal regime that governs refugee claimants' presence in that country. A degree of difference as between the legal schemes applicable in the two countries can be tolerated, so long as the American system is not fundamentally unfair."

"In my view, the record does not support the conclusion that the American detention regime is fundamentally unfair."

"They [appellants] claim that the legislation results in Canadian immigration officers summarily returning claimants to the United States without considering whether the United States will respect their rights under international law [including those relating to detention and the right not to be sent back to a place where irreparable harms such as threats to life or torture could be foreseen]."

Canadian Supreme Court Asylum Ruling

The Supreme Court of Canada ruled Friday that the Safe Third Country Agreement (STCA) between Canada and the United States is constitutional, at least in part — a legal victory for the federal government as it seeks to continue the practice of returning refugees who have tried to cross into this country from the U.S.  CBC

"Put simply, the Safe Third Country agreement continues to endanger the lives of people seeking protection, and it tarnishes Canada's identity as a compassionate and welcoming nation."

"The border officials who are dealing with people crossing at Roxham Road [NewYork-to-Quebec passage] don't have instruction, they don't have capacity, they aren't aware of how the various mechanisms could be [put] into place."

Fairo Sreenivasan, co-executive director, Canadian Council for Refugees

"We're not engaged in a conversation internally about suspending the agreement that we achieved with the United States through significant months, in fact years of work, immediately after the Supreme Court confirms its validity."

"[Border officers have] safety valves [under the legislation, meaning they have the discretion to make decisions on a case-by-case basis]."

"[It is inappropriate to say] everybody who meets a certain kind of persecution or threat of violence is going to be treated identically."

Immigration Minister Sean Fraser

RCMP officers approach a woman entering Canada via Roxham road on the Canada/US border in Hemmingford, Que., Saturday, March 25, 2023. (THE CANADIAN PRESS/Graham Hughes)

Canada's Supreme Court ruled the constitutionality of the agreement between Canada and the United States stipulating that asylum seekers must apply for refugee status in the first 'safe' country they enter. Canada's long-time agreement with the United States remains valid legally, border officials act in concert with the law by turning back claimants to refugee status should they arrive first in the United States. At official border crossings this is exactly what border officials have been doing. Refugee advocates sued to have the agreement abolished.

 

The problem hasn't been with the official border crossings, however, but the propensity of migrants planning to claim refugee status in Canada bypassing the official crossings knowing they would be turned back. Instead they cross the border illegally, bypassing the official crossings operated and manned by immigration officers. While still in sight of signage warning that crossing into Canada from the U.S. other than at an official site, is illegal. 

 

They are aware that Canada has not been turning these people back. The RCMP is present to intercept them, but as soon as the words 'refugee' passes the lips of migrants, they are escorted to official 'temporary' posts where they can fill out refugee claim applications. It all began years ago when the former Trump administration tightened their refugee and migrant policies under the weight of an unsustainable illegal migrant population in the country. Canada's Prime Minister Trudeau wrote on social media that Canada would welcome all such migrant 'refugees'.

 

This single virtue-signalling invitation initiated a stampede of illegal crossings. Once these migrants are courteously ushered into Canada by the RCMP they are free to resume their entry to Canada, bused to publicly-supported social welfare centres and to hotels where they are given lodging, fed, and informed that they will eventually hear from government officials with immigration whether their application has been verified and accepted or whether they must return whence they came. 

 

In the meantime, for up to several years they remain a charge on the Canadian taxpayer for their humanitarian upkeep. Needless to say many melt into the woodworks, so to speak, failing to show up for court dates or extradition becoming part of an underground network of illegals who find work to support themselves, or live on the gains of a generous social support system.

 

The agreement between the two countries dates from 2002. Asylum seekers are turned away should they attempt to cross into Canada from the U.S. at a land border crossing under the agreement and the same is done in reverse, from Canada to the U.S. The agreement is an acknowledgement that both countries' "generous systems of refugee protection, such that claimants can find effective protection in either country", is a guarantee of humanitarian protocols in place for genuine refugees.

 

Refugee claimants and human rights and refugee groups argued against the Supreme Court's validating the agreement, insisting that designating the U.S. a safe third country violates the Canadian Charter of Rights and Freedoms. The court did acknowledge one of the appellants' arguments which focused on the plight of women facing persecution based on gender; that such cases should be returned for consideration to the Federal Court.

 

Such a claim, it was observed "rests on grave allegations that women facing gender-based persecution and sexual violence are often denied refugee status. Given the profound seriousness of the matter, the size and complexity of the record and the conflicting affidavit evidence, it would be imprudent [for the Supreme Court to rule on it and] leave the losing party with no avenue of appeal", the Supreme Court decision noted.

 

The original agreement's loophole resulted in thousands of migrants crossing into Canada annually through unofficial border crossings, the infamous Roxham Road crossing in particular, which drew pressure on government to close the crossing. In March, Canada and the U.S. took the initiative to finally extend the agreement so that it covers irregular crossings. 

Some migrants have been known to fly to the United States on visitors' visas with the direct purpose of moving on through the illegal border crossings into Canada. New York City took to busing migrants that had been bused from Republican States on the Mexican border, convincing them they might prefer to go on to Canada, then busing them from NYC to access Roxham Road. 

 

Emergency accommodation in Canadian cities meant to house the Canadian unfortunates finding themselves homeless as a result of employment losses, drug addiction, mental incapacity and other related social services are using up available resources to house those claiming refugees status, at a cost to Canadians who require such services themselves.

 

A family with their luggage in tow are greeted by an RCMP officer at the illegal border crossing at Roxham Road near Perry Mills, New York, June 3, 2018. Photo by Tyler Anderson / National Post