Safe Third Country Agreement Being Challenged at the Supreme Court

Safe Third Country Agreement Being Challenged at the Supreme Court

The Safe Third Countries Agreement (STCA) is before the Supreme Court of Canada as of October 6, 2022. The STCA is an agreement between Canada and the United States that states people seeking refugee status who enter Canada at a land border will be denied. This denial is based on the pretense that the US is a safe country for refugees. It was put into effect in 2004 shortly after the US led war in Iraq was launched when the US was demanding Canada put in place things like the STCA to help the US’s war on terrorism under the false claim that Canada was a refuge for terrorists and that the US needed to decide who could and could not enter Canada to make a refugee claim.

The STCA is being challenged by Amnesty International, The Canadian Council of Churches and The Canadian Council for Refugees. Although this will be the first time the Supreme Court of Canada hears a challenge to the STCA, it is not the first time a court challenge has been brought against the legislation. The two previous times, the Federal Court in Canada found that the Safe Third Country Agreement violated refugee claimants’ Charter rights, yet twice the Federal Court of Appeal overturned these decisions on technical grounds. The Safe Third Country Agreement is causing many horrible consequences for those who seek refuge, and it should be ended.

A summary of the challenge provided by the court states:

“Since the 2004 agreement between Canada and the United States known as the Safe Third Country Agreement, the U.S. has been designated a safe country pursuant to s. 159.3 of the Immigration and Refugee Protection Regulations, S.O.R./2002 227. As a result, claimants arriving at a land port of entry to Canada from the U.S. are deemed to be ineligible for refugee protection in Canada pursuant to s. 101(1)(e) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. The individual applicants are among those claimants who were deemed ineligible. The applicants ABC and her children are from El Salvador, claiming refugee status based on gang violence and gender-based persecution. The Homsi/Al Nahass applicants are a Muslim family from Syria who left the U.S. following the issuance of the first travel ban by the U.S. government. The applicant Ms. Mustefa is a Muslim woman from Ethiopia who was detained after her attempt to enter Canada from the U.S. The applicant organizations were granted the right to participate as public interest parties. The collective applicants challenged the Canadian government’s failure to review the ongoing designation of the U.S. under s. 159.3 of the Regulations as rendering that provision ultra vires and not in conformity with s. 101(1)(a), 102(2) ad 102(3) of the Act. They also claimed that the designation and their ineligibility to claim refugee status infringed their rights guaranteed under sections 7 and 15 of the Canadian Charter of Rights and Freedoms and were not justified under s. 1.

“The Federal Court rejected the ultra vires argument but held that s. 159.3 of the Regulations and s. 101(1)(e) of the Act infringed s. 7 of the Charter and were not justified under s. 1. The court found it unnecessary to consider whether the provisions also infringed s. 15. The appellate court allowed the appeal, dismissed a cross-appeal on the ultra vires and s. 15 issues, set aside the Federal Court decisions, and dismissed the applications for judicial review.”