Federal lawyers defend Canada-U.S. asylum deal at top court, argue U.S. legal system is 'fair and just'

Refugee advocates appearing before the Supreme Court of Canada Thursday argued that the Safe Third Country Agreement governing asylum claims between Canada and the United States violates the Charter of Rights and Freedoms.

In summer 2020, the Federal Court sided with the advocates and ruled that the agreement violates section seven of the Charter of Rights and Freedoms, which protects an individual's right to life, liberty and security of the person.

The following spring, the Federal Court of Appeal sided with the federal government and set aside that decision, paving the way for arguments before Canada's top court.

The 16-year-old agreement recognizes both countries as "safe" for migrants and states that refugee claimants are required to request asylum in the first country they arrive in. That means Canadian border officials would send back to the U.S. any would-be refugee claimants arriving at an official border crossing from the U.S. into Canada.

To get around the terms of the agreement, people in the U.S. seeking asylum in Canada have been crossing the border between official ports of entry illegally and then claiming asylum once in Canada.

Many refugee claimants have entered Canada between ports of entry at places like Roxham Road in Quebec. Others have made perilous journeys through deep snow and freezing temperatures, putting their lives at risk.   

The Canadian Council for Refugees, Amnesty International, the Canadian Council of Churches and a number of other parties argued that the risk involved in those cross-border journeys, and the peril rejected claimants face when sent back to the U.S., violate section seven of the charter.

Andrew Brouwer, a lawyer acting for the Canadian Council for Refugees, Amnesty International and the Canadian Council of Churches, argued Thursday that the deal should be scrapped because rejected claimants who are returned to the U.S. are automatically detained, treated poorly and sometimes face deportation.

Rowe: Detention in U.S. not automatic 

When Justice Malcolm Rowe challenged Brouwer on his description of detentions in the U.S., Brouwer conceded that they may not be automatic but detention remains the "default" for those sent back south.

"No, no, no. Default is not automatic. Automatic means without exception," Rowe said, adding that sending someone back to the U.S. does not put them at greater risk because those in Canada illegally also could be detained here.

"I'd say there's a very serious risk of being detained if you're illegally in the United States in exactly a parallel way — there's a risk you'd be detained if you're illegally in Canada," he said.

If "it's clear they entered on an illegal basis, their presence is not in accordance with law. What would you expect?"

In its 2020 decision, the Federal Court ruled that safeguards for refugees in the U.S. are "illusory" because they can be hard to access and cited examples of people not being able to access those safeguards in Canada or the U.S.

Safeguards not 'illusory,' government claims

On Thursday, government lawyers told the top court that refugees have access to legal safeguards in this country.

"Safety valves are available," government lawyer Marianne Zoric told the court. "They are available in law, and so any remedy that's available in law ... is not illusory."

Zoric said that two of the litigants in this case did get access to legal assistance in their bid to claim asylum in Canada. One of those families, Zoric said, contacted a lawyer while at the border making their claim and that lawyer successfully applied to the Federal Court to grant them a temporary stay in Canada.

"How can we possibly say that these safety valves are illusory when there they are?" Zoric asked the court. 

Justice Rowe also told the court that arguments in favour of scrapping the agreement ignore the appeals process in the U.S. immigration system.

"I must say I find the Federal Court judge's sweeping aside of the entire system of immigration appeals and the assessment of refugee claims to be extraordinary," he told the court.

The federal government argued that there are many protections for refugee claimants in the U.S. legal system that claimants sent back from Canada can access.

Zoric urged the top court to keep in mind that people transiting through the U.S. to claim asylum in Canada are not being sent back to their countries of origin, but to the U.S.

"This is not a return to the country of persecution. This is a return to the foreign legal system," Zoric said. "You should be starting with the presumption of deference to the foreign legal system.

"It's an American legal system. When you have a democracy like the United States, you have to presume the foreign legal system is fair and just and if you want to displace that, you have an uphill burden."

Rowe commented on that point earlier in the day. He said that in the U.S. — a country of 350 million people where roughly two million people cross the border into the country illegally every year — miscarriages of justice can happen but do not necessarily taint the U.S. legal system.

At the end of the day's hearing, the court adjourned to take the case under advisement.