What to know about the Safe Third Country Agreement court challenge

Global News with Petra Molnar 5 November 2019


Arguments over the constitutionality of the Safe Third Country Agreement, a contentious deal between U.S. and Canada, are being heard in federal court this week. 

The agreement, which was signed in 2002, sought to manage the flow of refugees between the countries. But advocacy groups and lawyers have long raised concerns about the deal.

Here’s a look at what exactly the Safe Third Country Agreement is, and why it’s been challenged in court — again. 

What exactly is the Safe Third Country Agreement?

The agreement prohibits people from entering Canada from the U.S. — and vice versa — at official border crossings and asking for asylum. It was signed 17 years ago on the grounds that both are safe places and so those seeking sanctuary should apply in the first country they arrive in. 

But the deal, which came into effect in 2004, only applies at formal land, sea or air crossings.

Why is it controversial?

Advocacy groups, such as the Canadian Council for Refugees and Amnesty International Canada, have argued for years that the U.S. refugee record does not meet Canadian requirements to qualify it as a safe country for refugees. 

Criticism heightened when the U.S. tightened its asylum rules and regulations in recent years, the deal has come under intense scrutiny over concerns that actions taken by the Trump administration.

Petra Molnar, the director of the International Human Rights Program at the University of Toronto, told Global News that U.S. actions such as increased detention of migrants at the Mexico border and the travel ban on Muslim-majority countries have made things difficult for refugee claimants. 

In Spring 2017, the number of people seeking asylum in Canada each year doubled, from 23,350 in 2016 to more than 47,000 in 2017.

This spike, and the fact that tens of thousands of people had begun using a so-called “loophole” in the agreement by entering Canada at unofficial points of entry, caused many people to argue the government should do more to control the borders.

Some politicians, including Conservative leader Andrew Scheer, have voiced concerns that the agreement, which only applies to official border crossings, leaves a “loophole” for refugee claimants to enter Canada at unofficial points of entry.

However, experts have raised doubts about whether closing the so-called loophole would be possible or effective. 

Sharry Aiken, a Queen’s University law professor, told Global News that the “huge border” between the two countries makes the task difficult. 

She explained expanding the agreement to cover the entire border is nonsensical because Canada does not have the resources to enforce this type of mass “securitization” of the border.

Aiken pointed to the U.S.-Mexico border as an example of why increased security does not mean fewer irregular migrants.

More on the legal challenge

The Federal Court in Toronto will hear arguments on the court challenge this week.

Those challenging the deal include the Canadian Council for Refugees, the Canadian Council of Churches, Amnesty International and several would-be refugees — including a woman who says she was raped by an MS-13 gang member in El Salvador.

It’s not the first time the agreement has been subject to legal scrutiny. In 2007, it was also challenged in Federal Court, and the U.S. was declared not safe for refugees, but the decision was overturned on appeal.

Molnar explained that in 2007, the federal court did acknowledge the shortcomings of the deal.

“The judge actually recognized that by upholding the Safe Third Country Agreement, it meant that Canada’s complicit in potentially exploiting refugees or risk of torture or even death as a result of deportation to the U.S.,” she said.

While it’s difficult to predict how the court case will play out, Molnar said it has support from advocates, non-profit organizations and many lawyers. 

“I think it’s telling that the judiciary is thinking through these broader ramifications of what this agreement does on people’s human rights,” she said.

What happens if it is ruled unconstitutional?

Molnar said if the judge rules the agreement unconstitutional, it would be up to the government to find a solution — or fight the ruling.

“The government can always challenge that and then it’s going to go to an appeal and then potentially after that to the Supreme Court.” 

“It always takes a long time for there to be a final resolution.”

Petra Molnar is the acting director at the International Human Rights Program at the University of Toronto.