Amnesty International Canada and the Canadian Council for Refugees have filed a new Federal Court challenge to the constitutionality of the Safe Third Country Agreement with the U.S. that says refugees must claim asylum in whichever country they arrive in first.

In 2023 the Supreme Court of Canada ruled refugees can avoid being sent back to the U.S. if they face unnecessary detention or the risk of deportation to a country where their rights and lives would be threatened.

These considerations are referred to as “safety valves” by people working in the migrant rights sector.
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The Supreme Court of Canada’s decision today on the Safe Third Country Agreement (STCA) is a complex result that ultimately fails refugees.  The Supreme Court has allowed the appeal in part, sending the equality rights issue at stake back to the Federal Court,  and holding out for the possibility of the agreement being declared unconstitutional. But the Canadian Council for Refugees, Amnesty International Canada, and the Canadian Council of Churches are disappointed that the Supreme Court of Canada failed to decisively rule that the Safe Third Country Agreement violates refugees’ rights, exposing refugee claimants to further harms while awaiting another legal challenge.
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It will likely be months before refugee advocates, including the Canadian Council of Churches, know whether they have prevailed at the Supreme Court. But for now, council general secretary Rev. Peter Noteboom is satisfied that the argument to strike down the Safe Third Country Agreement between the United States and Canada has been heard.
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As Canada’s Safe Third Country Agreement with the United States goes back before the Supreme Court of Canada Oct. 6, Ottawa has revealed a surge of 23,358 asylum seekers at irregular border crossings in the first eight months of 2022.

That’s 13-per-cent more than all of 2017, when the flood of refugees at Quebec’s Roxham Road crossing from New York captured headlines.
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The Canadian Council of Churches, Amnesty International and the Canadian Council for Refugees are headed to the Supreme Court of Canada on behalf of refugee families who want a legal way to apply for asylum at Canada’s land borders. After twice winning in Federal Court only to see those decisions reversed in the Federal Court of Appeal, this is the first time the Supreme Court has agreed to hear arguments about the constitutional validity of Canada’s Safe Third Country Agreement (STCA) with the United States. Under the agreement, persons seeking refugee status must make their claim in the first country in which they arrive. It has been in place since 2004. A definitive ruling is necessary to clarify a system that forces would-be refugees to cross into Canada illegally at unofficial border crossings like Roxham Road south of Montreal at the Quebec-New York border, said Detroit Mercy University law professor Alex Vernon.

“Most refugees’ first experience of Canada is either to be summarily denied protection and excluded if they go to a (legal) port of entry without an exception to the STCA or to be forced to be ‘law breakers’ and arrested and processed upon entry at Roxham Road,” said Vernon, who runs Detroit Mercy’s immigration law clinic and regularly takes students to Roxham Road for real life experience of practising law on the border. “This is not in keeping with Canada’s international obligations, with constitutional rights of people on Canadian soil, nor with the dignity due to human beings — particularly human beings in distress.” The latest court loss for the refugee advocates at the CCC, AI and CCR came in April. The appeal court’s decision was based “not on substantive grounds, but on the basis of how the arguments were framed,” said a press release from the Canadian Council for Refugees.
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Yesterday, the Supreme Court of Canada reaffirmed that government actors have a duty to specifically consider religious freedom concerns when raised by claimants in its Ktunaxa Nation v. British Columbia decision. This historic case – the first Indigenous religious freedom claim to be heard by the Supreme Court – raised questions about the scope of religious freedom, and the means by which religious communities can practise and manifest their faith. Christian Legal Fellowship (CLF) and The Evangelical Fellowship of Canada (EFC) jointly intervened in the case.

The litigation arose from a proposed ski resort on land that is sacred to the Ktunaxa people. The Ktunaxa Nation opposed the development on the basis that it would desecrate the sacred site and would interfere with a variety of their spiritual practices.

The British Columbia Minister of Forests, Lands and Natural Resources approved the development but did not specifically address how the decision would impact the Ktunaxa Nation’s section 2(a) Charter right to freedom of religion.

The Supreme Court upheld the Minister’s ultimate decision; however, the Court was divided 7-2 on some of their underlying reasons.
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