Supreme Court of Canada upholds Safe Third Country Agreement, Canada-U.S. deal to control flow of refugees

OTTAWA-The Supreme Court of Canada has upheld the constitutionality of a Canada-U.S. immigration deal that turns back most would-be asylum seekers at the international border.

In a unanimous decision, the country's top court ruled Friday that the Safe Third Country Agreement does not violate Charter guarantees of liberty and security of the person. The court declined to rule on arguments the deal violated gender equality rights, sending that back to lower courts.

The judges rejected arguments that the U.S. immigration system exposes vulnerable asylum seekers to illegal or unfair detention, saying it does respect fundamental rights of individuals seeking protection from persecution in their homelands.

Even assuming that claimants face real and not speculative risks...the Canadian legislative scheme provides safety valves that guard against" risks wrote Justice Nicholas Kasirer in the unanimous 8-0 judgment.

"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," Justice Kasirer wrote.

"While the record shows that returnees face a risk of detention in the United States, it also discloses mechanisms that create opportunities for release and provide for review by administrative decision makers and courts. There is no basis to infer that these arrangements are fundamentally unfair. Thus, the risk of detention that returnees face is not overbroad."

Under the deal enacted in 2004, Canada and the United States designated each country as safe" and required would-be refugees to file their claims in the first country they land in.

It applied at official border crossings, and gives border guards little leeway to grant entry unless an individual meets a limited number of exceptions, such as being a minor or having close family members in Canada.

In the landmark ruling, the top court dismissed an appeal brought by eight individuals from El Salvador, Syria and Ethiopia who were backed by refugee advocacy groups like the Canadian Council for Refugees, the Canadian Council of Churches and Amnesty International.

In doing so, the court sided with the Canadian government's position that the 2004 Safe Third Country Agreement is constitutional, and provides protections for individuals' legal rights, and authority to deal with exceptional circumstances.

Justice Russell Brown, who heard the case last October too, resigned this week did not participate in the final ruling which is styled as Canadian Council of Refugees vs. Canada.

Canadian government lawyers had defended the law, saying it is not overly broad, and that the U.S. is a democracy with a well-functioning immigration system that respects international law. Ottawa also said courts cannot apply a Canadian Charter of Rights review or standards to the U.S.

In what many saw as a loophole, the deal originally did not apply at unofficial crossings, like Roxham Road near Lacolle, Quebec leading thousands, especially during the Donald Trump years, to use irregular border points to enter Canada to apply for protection.

Prime Minister Justin Trudeau and President Joe Biden expanded the pact in March to cover the entire land border, closing the gap.

The result has been an immediate drop in the number of border-crossing refugee claimants in both directions.

The ruling did not specifically deal with the politics of the loophole or the changes that closed it.

Rather, the refugee groups challenged the overall deal, saying it exposed asylum seekers to a risk of being held in U.S. detention centres in inhumane conditions that violate international standards including solitary confinement, inadequate medical care, cold temperatures; inadequate or religiously inappropriate food and water; staggering rates of sexual assault; and little or no time outdoors."

They argued the scheme does not provide proper access to counsel, along with virtually no way in Canada to challenge a border agent's order to immediately leave, which amounted to a violation of the refugees' rights under Sec. 7 of the Canadian charter to liberty and security of the person.

Additionally, they said it fails to protect Sec. 15 equality rights of female claimants who fear persecution and gender-based violence if deported from the U.S. to their country of origin because the U.S. doesn't recognize gender-based violence as grounds for an asylum claim. The high court did not deal with that argument, saying it was a claim that needed to be fully argued at the Federal Court and had not been.

The refugee advocates said Ottawa effectively contracts out Canada's international obligations to refugee claimants based on the premise that the U.S. will fulfil those obligations for us."

And they argued the federal cabinet failed its obligation to continually review the law.

Twice a Federal Court sided with the refugee advocates challenging the law, and twice the Federal Court of Appeal sided with the Canadian government.

On Friday the Supreme Court of Canada had the final word.

Tonda MacCharles is Ottawa Bureau Chief and a senior reporter covering federal politics. Follow her on Twitter: