Amnesty International was represented in this case by Lorne Waldman (2006, 2008) and Andrew Brouwer, Heather Neufeld, Leigh Salsberg, Michael Bossin, Erin Simpson, and Kate Webster (2019).
WHAT IS THIS CASE ABOUT?
On 5 December 2002, the governments of Canada and the United States of America signed the Agreement between the Government of Canada and the Government of the United States of America for cooperation in the examination of refugee status claims from nationals of third countries – also known as the Safe Third Country Agreement (STCA). The STCA, which came into effect on 29 December 2004, prevents refugees from seeking safe haven in Canada if they are seeking to enter from the United States at a land border, and vice versa. The STCA provides that refugees must make a claim for protection in the country – Canada or USA – that they enter first. Typically, claims made at the Canada-USA land border would be as a result summarily rejected unless the claimant satisfied one of a number of specified exceptions (e.g. the claimant has a family member in Canada or is a child).
In the first year it came into effect, the STCA slashed the average number of claims at the Canada-US land border from 8,436 to around 4,000. By denying access to Canada as a safe haven for genuine refugees, the application of the STCA thus enabled refoulement to torture and persecution in certain cases. For example, the applicant in this case, John Doe, had made a refugee claim in the United States that was refused because he failed to apply within one year of arrival in the States. He was barred from seeking asylum in Canada, and at risk of being returned to Colombia where he would face persecution. John Doe never appeared at the Canadian border to make his claim because was told in advance that he would be ineligible.
Because of the serious human rights implications of the STCA, on 29 December 2005, Amnesty International, together with the Canadian Council for Refugees, Canadian Council of Churches, and John Doe launched a legal challenge to the STCA and Canada’s designation of the United States as a safe third country for refugees.
AMNESTY INTERNATIONAL’S LEGAL CHALLENGE
Amnesty International and the other applicants brought an application for judicial review of the STCA before the Federal Court of Canada. We argued that by denying access to Canada as a safe haven for genuine refugees, the application of the STCA can result in their refoulement to persecution and torture by the United States. Further, the agreement adversely impacts on particular groups of refugees in a manner that effectively discriminates on the basis of gender, race, religion, nationality and/or sexual orientation. We sought a declaration that the agreement is unlawful and that it is in violation of the Canadian Charter of Rights and Freedoms (Charter) and of international refugee and human rights law.
STATUS OF THE 2006 CASE
The Federal Court of Canada upheld the challenge, finding that in denying access to Canada’s refugee determination system and returning refugee claimants to the United States where American laws are harsher and expose refugee claimants to a serious risk of refoulement to torture and persecution, Canada was in breach of section 7 of the Charter. The Federal Court also found that the application of the STCA had discriminatory effects, and that the federal Cabinet failed to comply with its legal obligations of ongoing monitoring and review of the United States as a safe third country.
On 17 January 2008, the Federal Court issued an order quashing the designation of the United States as a safe third country as of February 2008. The government appealed the Federal Court’s judgment and was granted a stay of the order by the Federal Court of Appeal until the appeal was decided.
The Federal Court of Appeal allowed the government’s appeal, finding that the Federal Court had erred in deciding a case on the basis of hypothetical scenarios. The Federal Court of Appeal determined that in order to entertain Amnesty International and the other applicants’ Charter arguments, a person actually adversely affected by the application of the STCA would have to bring the challenge to Canadian courts.
Amnesty International, along with the other applicants, filed an application to appeal the Federal Court of Appeal’s judgment to the Supreme Court of Canada. Very disappointingly, the Supreme Court declined to hear the case.
BRIEF TO THE GOVERNMENT (2017)
On 19 May 2017, Amnesty International and the Canadian Council for Refugees submitted a 52-page brief to the government of Canada outlining the many ways the United States’ asylum system and immigration detention regime fail to meet the required international and Canadian legal standards. The brief highlights how law and practice have deteriorated further since President Donald Trump took office. Unfortunately, the Canadian government’s response was to maintain the position that there is no need to revisit the Agreement. Read the brief here.
NEW LEGAL CHALLENGE (2019)
On 5 July 2017, Amnesty International, the Canadian Council of Churches, and the Canadian Council for Refugees announced the launch of a new legal challenge to the STCA. The three organizations planned to join an individual litigant who is asking the Federal Court of Canada to strike down the STCA and allow her to make her refugee claim in Canada. E. is a Salvadoran woman who fled her country with her daughters after a decade of being targeted by a gang, including most recently death threats. She has strong reasons to believe she might not be protected if forced to make her refugee claim in the United States, rather than in Canada.
On 4 – 8 November 2019, Amnesty International, the Canadian Council for Refugees, the Canadian Council of Churches, and eight individual refugee claimants challenged the legality of the Canada-U.S.A Safe Third Country Agreement in a hearing at the Federal Court. Amnesty International, along with the other applicants, argued once more that the STCA violates the Canadian Charter of Rights and Freedoms by threatening the life, liberty, and security of the person of refugee claimants and by having a disproportionate negative impact on women. As well, the designation of the U.S. as a safe country for refugees is unreasonable given the U.S.’s ongoing institutional violations of the Refugee Convention, particularly in light of the lack of assessment and monitoring in recent years. The STCA also contravenes Canada’s international obligations under the Refugee Convention and the Convention Against Torture, as it exposes refugee claimants to unsafe conditions in the U.S. and introduces the risk of their refoulement from the United States.
We sought a declaration from the Court that the STCA is unlawful due to the unreasonableness of the United States’ designation as a safe country, that it is unconstitutional due to its violation of s.7 and s.15 of the Charter, and that it contravenes Canada’s international human rights obligations. The Court’s decision on this hearing is pending.
Text of the Canada-US Safe Third Country Agreement
Application for Judicial Review of the STCA and Memorandum of Argument before the Federal Court of Canada by Amnesty International, the Canadian Council for Refugees, the Canadian Council for Churches, and John Doe (2006)
Federal Court Judgment in the STCA case
Amnesty International, Canadian Council for Refugees, Canadian Council for Churches, and John Doe’s submissions to the Federal Court of Appeal in the STCA case (2008)
Federal Court of Appeal Judgment in the STCA case
Application for leave to appeal the Federal Court of Appeal’s Judgment in the STCA case to the Supreme Court of Canada
Contesting the Designation of the US as a Safe Third Country, Brief to the Government of Canada by Amnesty International Canada and the Canadian Council for Refugees (2017)
Applicants’ Further Memorandum of Fact and Law before the Federal Court of Canada by Amnesty International, the Canadian Council for Refugees, the Canadian Council for Churches, ABC, DE and FG, Mohammad Majid Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Y Assin Al Nahass, and Nedira Jemal Mustefa (2019)
Applicants’ Memorandum of Argument in Reply before the Federal Court of Canada by Amnesty International, the Canadian Council for Refugees, the Canadian Council for Churches, ABC, DE and FG, Mohammad Majid Maher Homsi, Hala Maher Homsi, Karam Maher Homsi and Reda Y Assin Al Nahass, and Nedira Jemal Mustefa (2019)
“Final Reflections on the US-Canada Safe Third Country Hearings” (13 November 2019)
“What will it take for the Government of Canada to stop characterizing the U.S. as a ‘safe’ place for refugees?” (8 November 2019)
“Quelles sont les limites du Canada : la désignation déraisonnable des États-Unis sous l’Entente des tiers pays sûrs” (8 November 2019)
“Punished for committing no crime: How the Safe Third Country Agreement violates the Charter rights to gender equality, liberty and security of the person” (6 November 2019)
“Taking it to the court: challenging Canada’s complicity in the ill-treatment of refugees” (5 November 2019)
“Federal court hears case on whether asylum agreement with U.S. violates charter” (4 November 2019)
“Amnesty International calls on federal government to suspend Safe Third Country agreement with U.S.” (18 July 2019)
“The US is less safe than ever for refugees, evidence filed in court challenge shows” (4 July 2018)
“Legal challenge of Safe Third Country Agreement launched” (5 July 2017)
“Safe Third Country Agreement must be suspended, say Canadian Council for Refugees and Amnesty International in comprehensive brief to Canadian government” (27 June 2017)
“Six Human Rights Issues Trudeau must Raise with Trump during First Official Visit” (10 February 2017)
“Tell Your MP: The USA Isn’t Safe for Refugees” (31 January 2017)
Open Letter: “Canada must strip USA of ‘safe third country’ designation for refugee claimants” (30 January 2017)
“CCR and AI Call for Suspension of Removal of Refugee Family” (8 April 2009)
“Supreme Court Denial of Leave on Safe Third Regretted” (5 February 2009)
“Supreme Court Asked to Review Canada’s Closing of the Door on Refugees” (29 September 2008)
“Rights Groups Express Dismay with Appeal Court Ruling on Safe Third Country” (2 July 2008)
“Stay of Safe Third Country Decision Puts Refugees’ Lives at Risk” (1 February 2008)
“Safe Third Country Decision Welcomed by Rights Organizations and John Doe” (30 November 2007)
“Court and Parliament to hear Safe Third Country Challenge” (1 February 2007)
“Government Safe Third Review Asks Wrong Questions” (16 November 2006)
“Safe Third Country Agreement Shown to Violate Refugee Rights” (29 March 2006)
“Groups launch legal challenge to the Safe Third Country Agreement” (29 December 2005)
“Rights Groups Urge OAS to Declare Canadian Refugee Policy a Rights Abuse” (1 April 2004)
For further legal and media resources, see the Canadian Council for Refugees webpage on the Safe Third Country Agreement