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(Feb 02, 2008) In the immediate aftermath of the events on September 11, 2001, Canada and the United States issued a statement on common security priorities. One of the top priorities was to develop a Safe Third Country Agreement that would require persons from third countries to present refugee claims in Canada or the United States, depending on which country they first entered. (Public Safety Canada, Canada-United States Issue Statement on Common Security Priorities, http://ww2.ps-sp.gc.ca/publications/news/2001/20011203_2_e.asp (last visited Feb. 4, 2008). The Agreement was seen by both sides as a means of discouraging multiple claims. For the United States, the agreement was viewed as providing some protection from potential terrorists attempting to use Canada as a means of backdoor entry; for Canada, the agreement was seen as a means of discouraging growing numbers of potential refugees attracted by its more generous refugee policies.
Canada and the United States negotiated a Safe Third Country Agreement that went into force at the end of 2004. The Canada Border Services Agency states that the "Agreement is part of the Smart Border Action Plan and builds on a strong history of Canada-United States cooperation on issues relating to migration and refugee protection" (Canada Border Services Agency, Canada-U.S. Safe Third Country Agreement, Oct. 11, 2007, available at http://www.cbsa-asfc.gc.ca/agency-agence/stca-etps-eng.html). The Agreement only applies to refugee claims presented at the border. However, even though it is very limited in its application, there has been concern about how it would be received by Canada's courts. As early as 2002, it became clear that "Canada's courts have extended many rights and protections to refugee claimants, frustrating some attempts by the Government and quasi-judicial officers to eliminate some abuses." (Stephen F. Clarke, quoted in Carl Ek, Canada-U.S. Relations, CRS Report 96-397F, at 52 (2002)). The question then became one of assessing whether Canada could enter into a meaningful safe third country agreement that would withstand judicial scrutiny on both legal and constitutional grounds.
In recent years, Canada's courts have struck down a number of provisions of Canada¿s anti-terrorism legislation as being unconstitutional. Following this trend, a judge of the Federal Court ruled at the end of November 2007 that the United States is ineligible to be considered a safe third country because of its refugee policies and that forcing persons to return to the United States to file their claims violates the Canadian Charter of Rights and Freedoms. The judge objected to numerous provisions of U.S. law. Included among these was the possibility that claimants may be returned to their country of origin even if they may face torture, the possibility that women will be returned to face domestic violence, and the one-year limitation on the filing of a refugee claim. (Canadian Council for Refugees v. Canada,  F.C.J. 1583, available at http://decisions.fct-cf.gc.ca/en/2007/2007fc1262/2007fc1262.html).
Following the issuance of the trial judge's decision, the government asked the Federal Court of Appeal for a stay of the judgment pending appeal. On January 31, 2008, the Federal Court granted a stay, and thus the Safe Third Country Agreement is still in force. (Canada v. Canadian Council for Refugees, 2008 F.C.A. 40, available at http://decisions.fca-caf.gc.ca/en/2008/2008fca40/2008fca40.html).
The government of Canada is concerned that the striking down of the Safe Third Country Agreement could result in a tremendous increase in refugee claims and adversely affect perceptions in the United States about Canada's commitment to securing the border. Therefore, the question of whether Canada can legally enforce a Safe Third Country Agreement with the United States will almost certainly have to ultimately be decided by the Supreme Court of Canada, which still has a majority of judges who were appointed by the former Liberal governments of Prime Ministers Chretien and Martin.
|Author:||Stephen Clarke More by this author|
|Topic:||Immigration and nationality More on this topic|
|Jurisdiction:||Canada More about this jurisdiction|
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Last updated: 02/02/2008