Media Release –Supreme Court of Canada’s Decision on Safe Third Country Agreement Confirms Rights Violations in US and need to examine Gender Discrimination
The Canadian Association of Refugee Lawyers (“CARL”) is disappointed that today, the Supreme Court of Canada (“the Court”) failed to strike down the Safe Third Country Agreement (“STCA”). However, CARL is encouraged that the Court highlighted the importance of equality rights protected by section 15 of the Charter of Rights and Freedoms (“Charter”) and sent the case back to the Federal Court to assess the STCA’s constitutionality on that basis.
By failing to strike down the agreement, the Court has left in place a scheme that leaves many refugee claimants – and particularly women seeking protection from gender-based violence – in vulnerable situations in a country that fails to comply with international norms for protection.
CARL is deeply concerned for the lives and safety of refugees seeking Canada’s protection, who will continue to be turned back at the border despite serious gaps in the U.S. asylum system. “Behind this decision are vulnerable people fleeing persecution, including women and children facing gendered violence and people escaping harm because of their religious or political views. These are the people that will be impacted by this decision,” said Aviva Basman, President of the Canadian Association of Refugee Lawyers.
The Court has made clear that the constitutionality of the STCA remains a live issue for vulnerable refugees fleeing gender-based persecution. CARL is pleased that the Court recognized the critical importance of the right to equality and non-discrimination under section 15 of the Charter. Accordingly, it sent the case back to the Federal Court to determine whether the STCA violates equality provisions with respect to gender-based claims.
“Ample evidence demonstrates that women fearing gender-based persecution are adversely affected by the legislative scheme under the STCA,” said Maureen Silcoff, who represented CARL in its intervention before the Court. “CARL is encouraged by the Court’s recognition of the profound seriousness of the matter and the significant record on the issue of gender-based persecution in this case.”
The Court’s ruling on section 15 presents an opportunity for Canada, which possesses the authority to unilaterally develop public policy exemptions “in the public interest” pursuant to Article 6 of STCA. Canada can, and should, create a public policy exemption to allow individuals at risk of gender-based persecution to claim refugee protection in Canada. A recent Regulatory Impact Assessment rightly notes that the STCA forces refugees fleeing gender-based violence to risk their lives and safety to enter Canada. Similarly, the Standing Committee on Immigration recently recommended that Canada expand Article 6 public interest exemptions to cover, at minimum, gender-based violence claimants.
CARL notes that the Court highlighted aspects of the U.S. asylum system which are dangerous and problematic for refugees, including the risk of detention, bars to accessing protection (i.e. the “one-year bar” on making an application for asylum), and the use of solitary confinement for medical purposes. The Court found these conditions infringe upon the section 7 Charter rights to liberty and security of the person.
However, the Court deemed the STCA did not violate section 7 because of certain “safety valves” in Canadian law. CARL is disappointed in this finding, especially because these alleged safety valves are not accessible in practice to refugees at the border. “Reliance on individual discretionary measures – the ‘safety valves’ – to uphold fundamental Charter rights is deeply problematic,” said Kate Webster of CARL’s national executive and a member of the counsel team for the Applicants in the STCA case.
In July 2020, refugee lawyers welcomed the Federal Court’s decision to strike down the STCA after it found the agreement violated the Canadian Charter of Rights and Freedoms based on extensive evidence of the harm refugee claimants face when returned to the U.S. from the Canadian border, including imprisonment with inhumane conditions. It was the second time the Federal Court found the agreement to be unlawful. The Federal Court of Appeal reversed the decision both times, and in 2021, upheld the STCA on highly technical grounds.
The decision of the Supreme Court comes on the heels of the Government’s expansion of the STCA across the entire border in March 2023, which was widely criticized by refugee rights groups as a measure that would push already vulnerable migrants into more dangerous and life-threatening situations.
Founded in 2011, CARL is a non-profit organization that serves as an informed national voice on refugee law and the human rights of refugees and forced migrants. CARL’s membership includes over 350 lawyers, academics and law students from across Canada.
Aviva Basman, CARL President: email@example.com
Maureen Silcoff, CARL Intervenor Counsel: firstname.lastname@example.org
Adam Sadinsky, CARL Intervenor Counsel: email@example.com
Nicholas Hersh: CARL Co-Vice President: firstname.lastname@example.org
Suzanne Taffot: CARL Executive Member: email@example.com