Punished for committing no crime: How the Safe Third Country Agreement violates the Charter rights to gender equality, liberty and security of the person

Jaya Bordeleau-Cass and André Capretti are the 2019-2020 Public Interest Articling Fellows at Amnesty International Canada. They will be posting updates about the Safe Third Country Agreement hearing throughout the week.

Shame. Frustration. Rage. Disappointment.  

Court hearings can be dry, but when we listen to the facts and stories presented over the past two days in the challenge to the Canada-US Safe Third Country Agreement (STCA), it is hard not to have an emotional reaction.

On the second day of the hearings in Toronto, counsel for the applicants – Amnesty International, the Canadian Council for Refugees, the Canadian Council of Churches and individual refugee claimants – continued to present their legal arguments and reviewed how the STCA violates equality rights under section 15 of the Canadian Charter, and the rights to liberty and security of the person under section 7.

As a party to the United Nations Refugee Convention, Canada has an obligation to not return refugees to countries where their lives or freedom would be in danger. Under the STCA framework, Canada can designate a country as ‘safe’ for refugees if that country is fulfilling its international law obligations under the Refugee Convention and has an acceptable human rights record. The applicants have demonstrated that the US is no longer living up to its international obligations, and that returning refugee claimants to the US violates the Charter.

In particular, the section 15 equality rights of women who are returned under the STCA are disproportionately impacted by US policies. In the applicants’ submissions, counsel Leigh Salsberg asked the hard-hitting question: are refugee women fleeing gender-based violence in their own homes unworthy of Canada’s protection?

Under the current US legal framework, women are effectively prevented from making refugee claims based on a fear of gender-based violence – a ground which has long been recognized in both Canadian and international jurisprudence. Because of this, victims of gender-based violence who are returned to the US are disproportionately impacted by the STCA and face a greater risk of being returned to the very countries they are fleeing. Meanwhile, Canada is naively waiting for the US system to self-correct itself, despite requirements under international law to keep these refugee claimants safe.

Woven through the Charter arguments were the human stories at the heart of this case:

The mother of two from El-Salvador who, upon fleeing gender-based violence at the hands of the M-13 gang in El-Salvador, discovered her claim would not likely succeed in the US, only to then be turned back when she looked to Canada for protection;

The refugee claimant returned to the US under the STCA who was detained for 20 months while he waited a decision on his claim, only to be forcibly returned to his county where he experienced serious violence;

Or the young woman who was prevented from making a refugee claim in Canada and detained in the US for 51 days in a glass room where she was forced to sleep with the lights on and use the toilet with no privacy. 

As these stories – and those of many others – show, the current legal framework punishes refugee claimants for doing something all individuals have a right to do under international law: seek protection against persecution. They have committed no crime in asking for Canada’s protection. And yet, for those who are returned to the US under the STCA after attempting to make refugee claims in Canada, automatic detention is the rule and not the exception. 

For the many reasons stressed by the applicants, the detention of STCA returnees in the US engages the rights to liberty and security of the person under section 7 of the Charter.  As counsel Andrew Brouwer emphasized, “it is incredibly difficult to make an asylum claim from a jail cell,” particularly when access to legal support and interpretation services are limited.

On top of this, the detention conditions faced by STCA returnees are shameful. Treated like prisoners, those detained face inadequate access to health and mental care, high rates of sexual assaults and physical violence, inadequate supplies of food and water and several have spent time in solitary confinement. The psychological and physical impacts of these conditions are completely out of sync with international human rights standards and the Canadian Charter.  

Over the last couple days, counsel for the applicants have skillfully delivered arguments and shared stories that demonstrate how calling the US a ‘safe’ country for refugees is nothing more than a fiction.

All are welcome to join us at the Federal Court in Toronto (180 Queen Street West) from November 4-8, 2019, or click here to learn more and take action to call on Canada to suspend the STCA.