The Supreme Court of Canada is expected to rule Friday on whether the Safe Third Country Agreement between the U.S. and Canada is constitutional in a case that could have ramifications on the 2004 bilateral treaty that governs the flow of asylum seekers across the border.
Under the agreement, asylum seekers are required to make their claim at the first “safe” country they reach. It has meant that, in practice, border officials in Canada turn back would-be asylum seekers who show up at official checkpoints from the U.S.
But a loophole exists, and those who cross into Canada or the U.S. at unofficial crossings have been able to make their claims when intercepted by authorities — for example, the border officials at Roxham Road in Quebec.
The Canadian Council for Refugees brought forward the case in 2017 which is now before the nation’s top court, arguing that the U.S. is not always a safe country for all refugees.
The Federal Court ruled in July 2022 that the agreement was unconstitutional.
But in 2021, the Federal Court of Appeal found the agreement did not violate the Charter of Rights and Freedoms, allowing the federal government’s appeal that the Federal Court misinterpreted the law when it ruled that the treaty breaches constitutional guarantees of life, liberty and security. The ruling effectively set up the court battle that will be decided this week.
Friday’s ruling could also impact a recent deal reached between the two countries that saw the Safe Third Country Agreement to be implemented across the entire shared border in an effort to deter the irregular migrant crossings seen at unofficial entryways such as Roxham Road.
Last year, nearly 40,000 migrants entered Canada through Roxham Road, according to federal data. In December alone, the crossing saw 4,689 migrants enter — more than all would-be refugees who arrived in Canada in 2021.
From October 2022 through February of this year, U.S. Customs and Border Protection recorded 68,784 encounters at or near the Canada-U.S. border with people deemed inadmissible, including 13,053 in the last month alone.
—with files from The Canadian Press
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