A woman with a stroller is intercepted by RCMP crossing into Canada between official points of entry. Credit: Daniel Case/Wikimedia

By Janet Dench

The US-Canada Safe Third Country Agreement is about the same age as the ICLMG and has similar roots. In December 2001, in the wake of the 9/11 attacks, the governments of the US and Canada signed a Smart Border Declaration and Associated 30‑Point Action Plan to Enhance the Security of Our Shared Border While Facilitating the Legitimate Flow of People and Goods. One of the action points was the Safe Third Country Agreement, designed to prevent most people from making a refugee claim at the US-Canada land border. People seeking protection from persecution and making a refugee claim were presented as a threat to security and were not considered to be a “legitimate flow of people”.

The Safe Third Country Agreement is based on the principle that refugees should make their claim in whichever of the two countries they first arrive, because both countries are supposedly safe for refugees. Although the agreement works equally in both directions, in effect it is overwhelming about stopping people who are in the US from seeking protection in Canada.

The Canadian Council for Refugees, along with many other refugee rights organizations, and with the support of the ICLMG, has consistently argued that the US is not in fact safe for all refugees. Widespread use of detention, in horrific conditions, violates human rights and makes it extremely difficult for people to advance a refugee claim – they often can’t find a lawyer and struggle with basic communication issues when trying to collect evidence to document their fears of persecution. US law requires people to make a refugee claim within a year of arrival in the country – many people don’t immediately know how to make a claim or even that it might be relevant to do so in their situation. Women fleeing gender-based persecution frequently find the refugee door closed to them in the US – although the rules have changed several times over the last two decades, at no point has there been consistent and adequate protection for women because of how narrowly the US interprets the definition of refugee.

For all these reasons, the Canadian Council for Refugees, Amnesty International Canada and The Canadian Council of Churches launched a legal challenge of the Safe Third Country Agreement in 2005. The Federal Court upheld the challenge in 2007, but the decision was overturned by the Federal Court of Appeal, and the Supreme Court of Canada declined to hear the appeal.

When the Trump Administration came into power and immediately introduced shocking measures such as the “Muslim ban”, many hoped that the Canadian government, which prided itself on welcoming refugees, would finally be forced to conclude that the US could no longer be considered safe for refugees. But, as we later found out through disclosures in litigation, the Canadian government had established no minimum standards below which the government would need to withdraw from the agreement. So the government continued with the fiction that the US was safe for refugees.

The three same organizations therefore initiated another legal challenge in 2017, along with a courageous Salvadoran woman and her children (other individuals later joined their case). This case followed very much the same path as the first time around: the Federal Court upheld our challenge (finding that the conditions in detention in the US violated the Canadian Charter of Rights and Freedoms) and then once again the Federal Court of Appeal overturned the decision.

The second time around, however, the Supreme Court agreed to hear the case! Thousands of pages of evidence and argument are now before the Court, which held its hearing in October 2022. As I write, we are awaiting the decision.[1]

Meanwhile, in 2022, over 30,000 people crossed into Quebec at Roxham Road – not an official border point. They were arrested and processed. They did not want to cross irregularly – but this used to provide a way they could pursue a refugee claim in Canada, because the Safe Third Country Agreement did not apply in between Ports of Entry – until just recently!

In March 2023, Canada and the US extended the Safe Third Country Agreement to apply between Ports of Entry as well. This will not stop irregular crossings – it will simply make them more irregular, dangerous, and underground. We can expect to see an increased number of people hurt or even dying as they attempt risky routes across the border, including in deep winter. Unscrupulous smugglers will take advantage of the opportunity to make money out of people’s desperation.

The fact that the revised agreement requires people not to make a refugee claim within 14 days of entering Canada means that people may be under the control of smugglers for two weeks, vulnerable to abuse, and knowing that if they flee the smugglers they will lose the opportunity to make a refugee claim.

Far from enhancing border security, the agreement makes everyone less secure – it promotes irregular crossing of the border and subjects people seeking safety to much greater risks. The agreement needs to die.

Janet Dench was Executive Director of the Canadian Council for Refugees until December 2022.

Footnote

[1] Amnesty International Canada, Canadian Council for Refugees and The Canadian Council of Churches, “Supreme Court decision on Safe Third Country Agreement ultimately fails refugees,” Amnesty International Canada, June 16, 2023.

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