Matthew Plouffe

Recent issues surrounding restrictive immigration and refugee practices in the United States have led to a surge in irregular border crossings into Canada within the past year. This has caused increased concern amongst Canadian policy-makers and ignited a discussion about the dominant policy shaping U.S.-Canada border crossing, the Safe Third Country Agreement. The Safe Third Country Agreement pushes refugee claimants to cross the border into Canada outside recognized points of entry, and there have been notable legal challenges against the agreement.

Background

On December 29, 2004, Canada and the U.S. signed the Safe Third Country Agreement on the principles that both countries were safe places in which asylum-seekers could make claims for protection and that both governments would share the responsibility of responding to these claims. This agreement requires refugees to make their claims in the first country they arrive in, which, in practice, restricts their choice of where they seek asylum. In some specific circumstances, people may qualify for an exception: when it will preserve family unity, when it is in the best interest of the child, specifically for unaccompanied minors, and when it promotes public interest. This final exception is seldom used and left to the discretion of the Minister of Immigration, Refugees and Citizenship.

Besides these exceptions, the Safe Third Country Agreement has a glaring loophole: it only applies to those making a “point of entry” claim at a recognized border crossing. If a refugee claimant enters the country outside of a designated border crossing, they can still make a legal claim from within the country. This condition of the agreement, combined with changes in immigration policies in the U.S., has led to the recent surge of irregular border crossings in provinces like Quebec and Manitoba, sometimes at refugees’ great personal risk. In response to this phenomenon, many have joined the call for the Safe Third Country Agreement to be carefully evaluated in terms of its ethics and effectiveness. Others continue to advocate for its abolishment.

The Safe Third Country Agreement and the Courts

Since the establishment of the Safe Third Country Agreement, the courts have played a fundamental role in its interpretation. Due to political considerations like the bill’s effect on Canada-U.S. relations and the unpopularity of its removal, federal governments since Paul Martin have defended the agreement, despite its glaring challenges. Most recently, the Liberal government has stuck to its position in favour of the Safe Third and said that they will not “tinker with” the agreement. Though law-makers are not willing to make changes to the agreement, it continues to have consequences. As a result, the court now remains the fundamental source of change for the Safe Third Country Agreement and has also become the de facto determinant of a significant aspect of Canadian refugee policy.

The first notable challenge to the Safe Third Country Agreement came on December 29, 2005, when a Colombian asylum seeker in the United States launched a legal challenge of the agreement on the grounds of fear of not receiving a fair process if their claim was heard in the U.S. With support from the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, this challenge was upheld in the Federal Court of Canada, and on January 17, 2008, Justice Michael Phelan concluded that the Safe Third Country Agreement should be rescinded. He reasoned that the United States was not necessarily a safe country for those seeking asylum and that the Safe Third Country Agreement contravened sections 7 and 15 of the Charter of Rights and Freedoms. Additionally, the court found that the federal government had failed to provide the necessary regular reviews of the safe third country status, which were required by legislation. Justice Phelan then mandated that the federal government had until February 1, 2008 to end the U.S.’s status as a safe third country.

However, the federal government appealed Justice Phelan’s decision. The Federal Court of Appeal reversed Phelan’s decision on June 27, 2008 based on procedural errors and the inapplicability of the Charter to someone outside of Canada. This decision meant that the U.S. maintained its status as a safe third country. In 2009, the Supreme Court declined to hear the appeal of this decision, thus leaving the Safe Third Country Agreement in place to govern our border relationship with the United States

In July 2017, another legal challenge was brought forward against the agreement. A Salvadorian woman crossing the border from the U.S. to Canada filed a Federal Court challenge on the same grounds as the previous case. Her case, too, contends that the U.S is not a safe country for refugees, which makes the Safe Third Country Agreement unjust. This case comes after President Trump’s signing of several immigration and refugee-related executive orders. The claimant’s lawyer, Prasanna Balasundaram, is focusing the court challenge on the claimant’s Charter rights since she was within Canadian territory when she was initially prevented from making a refugee claim.

Conclusion

As irregular border crossings continue, the Canadian government needs to consider how it will act. There are many different solutions and approaches to take, each with different political outcomes and messages. With the case currently before it, the Federal Court must now examine and evaluate an option that would represent a significant change in our border relationship. If the legal challenge is found valid and the Safe Third Country Agreement rescinded, this would remove the incentive to cross irregularly into Canada. Without any significant change being brought through the federal legislature, it is now simply a matter of time to see how the Court decides.  Until then, it seems that there could be little change to the issue of irregular border crossings.

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Matthew Plouffe is currently a Master of Public Policy candidate at the School of Public Policy and Governance at the University of Toronto. He holds a Bachelor of Arts (Honours) in International Development with a Certificate of Public Policy and Administration from the University of Guelph. His particular policy interests include housing policy, refugee and immigration policy, social policy and intergovernmental affairs.