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Immigration Minister Sean Fraser speaks with reporters in the Foyer of the House of Commons, in Ottawa on June 16.Adrian Wyld/The Canadian Press

Michael Barutciski is co-ordinator of Canadian Studies at York University’s Glendon College. He was previously director of the diplomacy program at the University of Canterbury Law School and fellow in law at Oxford University’s Refugee Studies Centre.

To the average observer, the Supreme Court of Canada’s decision to uphold the constitutionality of the Safe Third Country Agreement (STCA) may seem surprising. After all, ever since legal proceedings began in 2017, a chorus of refugee advocates have made clear in the media and elsewhere that they believe the United States to be unsafe for asylum seekers; the Canadian government’s position that the STCA was constitutional also enjoyed next-to-no support from Canadian refugee law scholars. Meanwhile, Ottawa has barely explained its position, and the Liberal government’s refugee-friendly face only confuses matters for the public.

But contrary to the general impression left by the country’s media and academic establishments, the one-sided narrative that refugee advocates are contesting inhumane laws is too simplistic.

Working with our continental partners on refugee protection – especially with the U.S., the top host country for asylum seekers in the Western Hemisphere, and by far the biggest single donor country to the UN High Commissioner for Refugees – is a complicated task of the utmost importance, and the decision gives a clearer picture of our government’s obligations. The court unanimously found that U.S. immigration detention is not “fundamentally unfair, and thus the risk of detention that returnees face is not overbroad.”

Yet many refugee advocates have simply never accepted co-operation between the two continental partners, because they believe U.S. standards are not satisfactory. That’s why variants of this legal challenge have been initiated since the late 1980s, resulting in two Canadian trial judges accepting the advocates’ bold position: that the U.S. asylum system violates international law. Both rulings have been overturned on appeal, and now, the country’s top court has finally addressed the substance of the issue.

The way in which the government defended the STCA can certainly be criticized. During the Supreme Court hearing, government lawyers could not provide an answer when asked what percentage of asylum seekers trying to enter Canada were affected by the agreement. Likewise, the government only brought forward two academic expert witnesses, and because neither was Canadian, they lacked specific relevant knowledge. On the other side, the advocates’ many expert witnesses were all recognized specialists offering pertinent critical analysis, and they clearly defended their clients with considerable passion and a seemingly impressive volume of evidence.

But the case ultimately suffered from the same problem affecting their initial victory more than 15 years ago: they brushed away criticisms from appeal courts and overestimated the strength of their case. Less progressive groupthink could help them in future challenges to the questionable practices they have raised. They will have another chance: the STCA judgment referred the issue of potential Charter-violating gender-based persecution in the U.S. back to a trial judge.

Non-refoulement – the idea that countries receiving asylum seekers cannot return them to a country where they face a threat to life or freedom – is the most basic principle of international refugee law, and the Supreme Court explained that Canadian law provides many “safety valves” against that risk. Thirty years ago, the U.S. Supreme Court rendered an important judgment on how it interprets non-refoulement in the context of Haitian boat people who were intercepted and returned directly to Haiti without an asylum hearing. To this day, the academic community refuses to accept the restrictive U.S. judgment that allowed the harsh Haitian policy. But as unfair as it may be, an integral part of the system is that different jurisdictions interpret basic norms in different ways. Contrary to the globalized academic community’s reflex, the asylum system is anchored in state sovereignty. As underlined by the Supreme Court’s ruling, a “degree of difference as between the legal schemes applicable in the two countries can be tolerated, so long as the American system is not fundamentally unfair.”

The U.S. treatment of asylum seekers may not be up to the highest Canadian standards, but it is neither a violation of international law nor an impediment to continental co-operation. Let us now hope that the federal ministers responsible for immigration, public safety and justice will take the time to explain why the government believes its position is just, and do so as passionately as the refugee advocates who argued their case before the Supreme Court. Otherwise, we risk a dangerous loss of public trust in the fairness of Canada’s asylum system.

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