Skip to main content

The Supreme Court of Canada in Ottawa, in August, 2022.Adrian Wyld/The Canadian Press

Members of the Supreme Court of Canada expressed doubts, even astonishment, that the United States is unsafe for migrants turned away from Canada, at a hearing affecting the power of federal officials to reject refugee claimants at land borders.

Under the Safe Third Country Agreement, which took effect in 2004, Canada and the U.S. agree that refugee claimants from other lands who come through either of the two countries’ official land entry points may be turned back, on the principle that each respects international protections for refugees.

The agreement contains provisions for a continual review of those protections. Thousands of migrants were returned to the U.S. between 2014 and 2018, federal lawyer Marianne Zoric told the court. The pact does not cover the thousands who arrived in the past few years at land borders that are not official entry points. Those migrants may claim refugee status in Canada.

Eight refugee claimants from Ethiopia, El Salvador and Syria – two families and an individual – plus several advocacy groups, challenged the Safe Third Country Agreement in 2017, alleging that the U.S. poses a risk of detention, return to persecution or torture in other countries and other rights violations.

The case is an uphill battle for those claimants because the Supreme Court has made it clear in previous cases that it does not like to interfere in foreign relations, is not an expert on other countries and endorses “comity” – the principle of respect for foreign legal systems, which includes a reluctance to judge them by Canadian standards.

Still, Federal Court Justice Ann Marie McDonald ruled two years ago that the Safe Third Country Agreement violated the protection of life, liberty and personal security in the Charter of Rights and Freedoms, and she struck it down. After hearing evidence from experts on U.S. and Canadian refugee law, she found that failed claimants “automatically” are “detained without regard to their circumstances, moral blameworthiness, or their actions.” Often, she wrote, they have no meaningful chance at a review of their detention.

Generally, appeal courts defer to the factual findings of lower-court judges. But the Federal Court of Appeal threw out her decision last year, saying in a 3-0 ruling written by Justice David Stratas that she got her facts terribly wrong – ignoring discretion in the Canadian system that could alleviate harsh effects on migrants – and went just as awry in law.

On Thursday, Supreme Court Justice Malcolm Rowe said the initial ruling that found the U.S. unsafe was based on exaggerated concerns: “It sounds as if you’re going to be put on a plane and sent back the next day even if there’s a death squad waiting for you. That’s not the reality.”

He told refugee lawyer Andrew Brouwer he found it extraordinary that Justice McDonald called exemptions and safety valves built into refugee law on both sides of the border an illusion. “You take the legislation and you sort of throw it over your shoulder and say none of that matters because it’s all just an illusion. . . . I find it astonishing that any judge would say that.”

Mr. Brouwer replied that Justice McDonald had an extensive record before her “about what exactly happens at the port of entry.”

Justice Rowe noted that the U.S. has two million illegal entries each year, and asked if “even a handful of failures means that Canadian law is somehow encompassing all of the operations of the U.S. immigration system?”

Mr. Brouwer replied that, at a minimum, Canada needs to be able to rely on the U.S. to ensure effective protection of refugee claimants.

“Well, hold on,” Justice Russell Brown said, and pointed to multiple reviews by Canada of the asylum situation in the U.S.

Justice Suzanne Côté said the United States has a robust refugee determination system, including a right to counsel. “They are not deported in a vacuum.” And with one exception, “nobody was detained in this case.”

Mr. Brouwer replied that refugee lawyers had arranged a week or two in advance of the family’s appearance at the border to seek a stay in Federal Court of the deportation to the U.S. of an El Salvadoran mother and her three children. Justice McDonald’s ruling described this woman as having been raped by the criminal gang MS-13, her children threatened, and El Salvador unable to protect them.

“We knew they were coming because they had family in Canada,” Mr. Brouwer told the court. “But for that they would have been removed.” And beyond the nine individuals in the case, several migrants signed affidavits discussing their immediate detention on being returned to the U.S. There was also evidence on the overall system’s workings from the experts, he said.

Opinion: Why do some asylum seekers make it into the West quickly – while others have to wait more than a decade?

Critically, Justice Nicholas Kasirer, a centrist on the court, found Justice McDonald’s comment on illusory protections “perplexing.”

In previous cases, the Supreme Court has ruled that Canada must not extradite suspects to face the death penalty or torture, which would shock the conscience of Canadians. Ms. Zoric, representing the federal government, said the refugee claimants contesting the Safe Third Country Agreement therefore had to show it shocked the conscience – a high standard to meet.

But Justice Sheilah Martin and others expressed disagreement or puzzlement at the argument.

The land point of entry, which excludes airports and boat arrivals, is used because it is clear where the migrant has arrived from, Ms. Zoric told the court.

The Supreme Court reserved its decision.