Safe Third Country Agreement
Supreme Court decision on Safe Third Country Agreement
Misses the Mark on Refugee Rights,
but Offers Some Hope
~ from a post dated June 16, 2023 on The United Church of Canada’s Facebook page
The United Church of Canada laments the Supreme Court’s decision today that failed to decisively rule that the Safe Third Country Agreement violates refugees’ rights. Refugees and their allies, including Canadian churches and ecumenical groups, have long advocated for an end to this agreement because the United States is not a safe country for all refugees.
Refugees have testified from their lived experience that the United States does not provide the necessary level of safety for diverse communities, including women fleeing domestic violence. The agreement does not do enough to address possible risk. Please see the statement of the Canadian Council of Churches (CCC), who intervened in this case. The United Church of Canada is a member of the CCC.
Statement from Canadian Council for Refugees, Amnesty International Canada, and Canadian Council of Churches
The Supreme Court of Canada’s decision today on the Safe Third Country Agreement (STCA) is a complex result that ultimately fails refugees. The Supreme Court has allowed the appeal in part, sending the equality rights issue at stake back to the Federal Court, and keeping alive the possibility of the agreement being declared unconstitutional. But the Canadian Council for Refugees, Amnesty International Canada, and The Canadian Council of Churches are disappointed that the Supreme Court of Canada failed to decisively rule that the Safe Third Country Agreement violates refugees’ rights, exposing refugee claimants to further harms while awaiting another legal challenge.
“Today’s decision is partly disappointing in the sense that the STCA continues to be in effect and folks who show up at our borders will continue to be sent back to the US to face deportation, detention and solitary confinement,” said Aleks Dughman-Manzur, President of the Canadian Council for Refugees. “On the other hand, the Supreme Court did not find the STCA to be constitutional. On the contrary, the Supreme Court upheld the importance of section 15 and instructed the Federal Court to weigh in on equality rights. The Court did not consider the US to be a safe country for refugees, and though it understood that there are safety valves in place at the border, we know in practice those safety valves are not accessible. We continue to call on the Federal government to suspend the application of the STCA.”
Under the STCA, most refugee claimants who arrive at the U.S.-Canada land and water border seeking protection in Canada are denied entry and turned back to the U.S. In March 2023, the agreement was expanded to apply not only at official border crossings, but also in between border points if the person makes a refugee claim within 14 days of arrival – forcing people to make more irregular, dangerous, and underground crossings just to seek protection in Canada.
The Court acknowledged that refugees sent to the US face risks of rights violations, but noted that there were “safety valves” available for people to be exempted from return to the US if they are at risk. Although these mechanisms exist in law, in practice they are not accessible to people making a refugee claim at the border.
“No matter how they enter Canada, people fleeing danger and persecution have an internationally protected right to seek safety and to have their refugee claims assessed fairly,” said Ketty Nivyabandi, Secretary General of Amnesty International Canada’s English-speaking section. “Now even more than when we first took up this challenge, the Safe Third Country Agreement puts those rights — and crucially, those rights-holders — at serious risk. Our hearts go out to the people endangered by the STCA, and despite today’s decision, we call on the government to withdraw from the pact without delay.”
“Canadian faith communities have long advocated for Canada to welcome and respond to people in need of safety who are fleeing from violence, discrimination, persecution, and war. While the Safe Third Country Agreement remains in effect, the court also found that its implementation is unsafe. It will always be essential that people at a port of entry to Canada have full and equal access to the fundamental principles of justice in the Charter of Rights and Freedoms that would give them a fair hearing in Canada,” said Pastor Peter Noteboom, General Secretary of The Canadian Council of Churches.
Unlike the lower courts, the Supreme Court considered issues related to gender-based discrimination, about which the organizations presented extensive evidence. Throughout the life of the Safe Third Country Agreement, the US has denied refugee status to many people fleeing gender-based persecution, in violation of section 15 of the Canadian Charter of Rights and Freedoms. By sending the section 15 challenge to the lower courts, the Supreme Court offers some hope amid a disappointing decision.
The three organizations maintain that the STCA is counter to Canadian values, in breach of international obligations, and stands in stark contrast to the overwhelming public support for refugees. Canada’s identity as a compassionate and welcoming nation is tarnished by this shameful agreement.
Today’s decision does not change the fundamental rights of refugees, nor does it absolve Canada from its international obligations under the Geneva Convention. It does not change our call for suspension of the agreement, recently extended across the entire shared border with the United States.