Safe Third Country Agreement before Supreme Court

As Canada’s Safe Third Country Agreement with the United States goes back before the Supreme Court of Canada Oct. 6, Ottawa has revealed a surge of 23,358 asylum seekers at irregular border crossings in the first eight months of 2022.

That’s 13-per-cent more than all of 2017, when the flood of refugees at Quebec’s Roxham Road crossing from New York captured headlines.

The Canadian Council of Churches, along with Amnesty International Canada and the Canadian Council for Refugees will argue before the Supreme Court this week that the Roxham Road situation isn’t just administrative mayhem — it violates fundamental Charter rights which apply to anyone on Canadian soil.

The Federal Court of Canada struck down the Safe Third Country Agreement in 2007, but it was restored by an appeal court on the technical grounds that the Canadian Council of Churches, Amnesty and the Canadian Council for Refugees were not themselves refugees and therefore did not have standing to bring the case to court. In 2020 the Federal Court again sided with the refugee advocates and refugee families included in the test case, ruling the STCA unconstitutional. Again the Federal Court of Appeal overturned the decision in 2021. This time the arguments will be heard bya the highest court.

The Safe Third Country Agreement has been contentious since it became law at the end of 2004. The agreement stipulates anyone seeking asylum in either Canada or the United States must file for refugee status in the country where they first land. Canada sends refugee claimants who enter from the United States back to the United States. The agreement only applies to people crossing at official land border crossings.

Claimants who arrive from the United States by air or by ship may file for asylum. Claimants who arrive at unofficial border crossings are also eligible to make a claim.

For more than a year Canada has been in negotiations with the United States to extend the agreement to cover the entire border and not just official border crossings.

The circumstances that have created the Roxham Road border crossing is no way to run an immigration system, argues Alex Vernon, Detroit Mercy University law professor and director of the university’s immigration law clinic.

“The whole crisis is entirely manufactured by our policies,” said Vernon.

Without the Safe Third Country Agreement with the U.S. there would be no refugees trudging up Roxham Road to ask for asylum from Royal Canadian Mounted Police officers, Vernon said. Instead they would be at regular border crossings, filing claims with Canada Border Services and connecting with lawyers.

“None of these people are really interested in evading authorities. They’re trying to seek protection in the only ways that are available to them, which involves these irregular transits,” he said.

So far in 2022 irregular border crossings represent 63 per cent of a total 36,805 refugee claims filed in Canada between January and September.

With asylum numbers growing, the Immigration and Refugee Board, the tribunal that decides the merits of asylum claims, is falling behind. As of the end of June, the IRB backlog stood at 55,501 cases. The IRB appeals tribunal had 5,258 cases in its inbox.

Canada needs to do more to take up “a fair share of the responsibility for refugee flows that arrive on our land,” said Vernon, a Canadian lawyer. That means a more serious effort to adjudicate who is or isn’t a refugee, rather than sloughing the responsibility off on the United States, he said.

“We’re a sovereign country that has our own precedents on certain refugee decisions,” he said.