On Thursday the Supreme Court of Canada will hear a case about the constitutionality of the Canada-US Safe Third Country Agreement (STCA). In effect since 2004, the agreement blocks asylum seekers who are in the United States, or travelling through the United States, from making refugee claims in Canada — with a few narrow exceptions.
The Supreme Court’s decision will have significant implications for the determination of refugee rights in Canada and for the adjudication of rights under Section 7 of the Canadian Charter of Rights and Freedoms. Section 7 guarantees everyone — including asylum seekers — the right to “life, liberty, and security of the person.”
Allard Law Professor Efrat Arbel is part of the counsel team representing the Canadian Civil Liberties Association in this case. She’s published extensively on the Safe Third Country Agreement and co-delivered expert testimony on the STCA before the House of Commons. Five Allard Law students have also contributed to the Canada Civil Liberties Association’s initial submission to the Supreme Court.
We caught up with Professor Arbel and two of the contributing Allard Law students, Yanni Nicholidakis-Mustafa and Verukah Poirier, to learn more about what’s at stake.
One of the questions before the Court is whether the United States can properly be designated as a “safe” country for asylum seekers. Can you speak to this issue in more detail?
Efrat Arbel [EA]: The central premise of the STCA is that both Canada and the United States must designate one another as “safe” countries for asylum seekers. This requires each country to meet basic standards of refugee protection as set out in international law.
The US asylum system fails to meet these standards at the level of law, policy and practice. To list just a few examples, the US does not ensure due process in the determination of asylum, denies refugee protection to women fleeing gender-based persecution, deems as ineligible certain refugees who do not meet arbitrary procedural deadlines, and regularly detains asylum seekers, including children and infants under appalling conditions of confinement.
By this measure, the United States has not been a “safe” country for asylum seekers for decades — not under George W. Bush, not under Barack Obama, not under Donald Trump and not under Joe Biden.
Since its implementation in 2004, how has the STCA impacted asylum seekers who have tried to enter Canada?
EA: The STCA was specifically designed to prevent asylum seekers from seeking protection in Canada. The STCA operates to block asylum seekers from entering Canada at formal ports of entry along the border, and requires Canada to return these asylum seekers to the United States.
The consequences of this are significant — we know full well that when we block refugees at the border and return them to the US, we send them to face detention, deportation, torture and sometimes death. And yet, somehow, we turn a blind eye to this. The STCA is a cruel and aggressive instrument that stands at odds with Canada’s stated commitment to refugee protection.
You are a member of the counsel team representing the Canadian Civil Liberties Association (CCLA), who is intervening in this case. Can you tell us about the CCLA’s arguments in this appeal?
EA: I have the great privilege of co-representing the CCLA alongside an amazing group of lawyers — our lead counsel Jackie Swaisland, and co-counsel Ben Liston and Jonathan Porter.
The CCLA’s intervention addresses two important aspects of the Federal Court of Appeal’s decision. First, the Federal Court of Appeal created a new, very onerous evidentiary standard for Charter litigation. Second, the Federal Court of Appeal created a new, very onerous procedural hurdle in the law governing government assertions of privilege. These two new standards create serious access to justice barriers for future Charter claims — they operate to increase litigation costs, exacerbate delays and require the expenditure of scarce judicial resources. CCLA is urging the Court to reject these new standards.
Can you tell us a bit about the contributions made by Allard students to this case?
EA: It has been an absolute joy to work with students on this case! When CCLA first sought leave to intervene in this case in spring 2022, I assembled a group of five students who were keen to assist: Isabella De Bortoli, Simran Hothi, Yanni Nicolidakis-Mustafa, Verukah Poirier, and Paul Van Benthem.
All five students conducted detailed research and made important contributions to the leaveapplication. The Court granted CCLA leave over summer, after Isabella, Simran and Paul had already graduated from Allard Law. I was delighted that Yanni and Verukah could continue working on the case — their research has been impeccable and their contributions invaluable.
How does it feel to have your research make it to the Supreme Court of Canada? What stood out for you in your work on this case?
Verukah Poirier: In law school, we do not get to see how the Charter interacts with the lives of Canadians and people entering Canada. We have been given the tools at law school to take our education and use it in a way that’s impactful and beneficial to those whose voices are often unheard.
It was an honour to work with the legal team and the CCLA to contribute to research that is being used to help people who need that help. I’ve been able to witness great dedication to the public interest from the lawyers, Professor Arbel and the other students involved in this case. Being able to witness the countless hours spent on this case allowed me to see that passion and creativity play a very important role in Charter litigation.
What’s one thing that you learned while working on this case, and how has that one thing informed your legal education?
Yanni Nicolidakis-Mustafa: Working on a case like this so early in my career is truly a privilege. I’m grateful I had the opportunity to work with an incredible team of lawyers and academics, and now I have a better idea of how much collective effort truly goes into Supreme Court of Canada level work.
I learned that every legal question — no matter how narrow — can open pandora’s box. What might seem like a tidy and constrained question at first glance quickly becomes a long line of questions that need answering before you can approach the question of first instance. I also learned that the only way to effectively tackle these questions is with an outstanding team, where everyone feels comfortable to ask questions, deliberate and chart a path forward together.
The Supreme Court will hear this case on Thursday, October 6. You can access the livestream here.
Read the Canadian Civil Liberties Association’s full legal arguments.