The Significance and Future of the Canada-US Safe Third Country Agreement in Donald Trump’s America

The Canada-US Safe Third Country Agreement (“The Agreement”), the agreement between Canada and the US that deems the other country a “safe country” under each country’s respective immigration laws, may now need to be called into question. The Agreement, which is current domestic law under the Immigration and Refugee Protection Act SC 2001, c 27 (“the IRPA”), has undergone consistent criticism, but the first month of Donald Trump’s presidency—and, in particular, his recent travel ban—has birthed a new movement in opposition to the Agreement. New circumstances in the United States, and by extension Canada and the world, may be signalling the end of the Agreement, whether it be the government or the courts that ultimately does away with it.

History of the Agreement

Following negotiation, Canada and the United States signed the Agreement in 2002. In 2002 the IRPA became domestic law in Canada, and in 2004, the US was designated a “safe third country” under regulations, giving domestic effect to the Agreement. Designating one another a “safe country” under this Agreement means that a refugee claimant must make their claim in whichever country they arrive in first, subject to certain exceptions in the statute. It was hoped that this designation would better manage the flow of refugees that made claims at the Canada-US border. This was not the first time that the concept of a “safe country” existed in Canadian law, but it was not until 2004 that the IRPA provided for this particular mechanism for granting this status and the US was the first, and remains the only, “safe country” in Canadian law.

The Law

As stated, in 2002, the IRPA came into force, providing provisions that ultimately allowed for the Agreement to become domestic law.

First, section 101(1) provides that a refugee claim is ineligible to be assessed if the claimant came “directly or indirectly to Canada from a country designated by the regulations…” (s 101(1)(e)).

Section 102(1) then provides that the Governor in Council may create regulations including (a) designating countries that comply with Article 33 of the Refugee Convention and Article 3 of the Convention Against Torture; (b) making a list of those countries and amending it as necessary; and (c) respecting the circumstances and criteria for the application of paragraph 101(1)(e). Subsection (2) then provides that there are four factors to be considered in designating a country under paragraph (1)(a):

• Whether the country is a party to the Refugee Convention and to the Convention Against Torture;
• Its policies and practices with respect to claims under the Refugee Convention and with respect to obligations under the Convention Against Torture;
• Its human rights record; and
• Whether it is party to an agreement with the Government of Canada for the purpose of sharing responsibility with respect to claims for refugee protection.

Finally, subsection (3) provides that the Governor in Council must “ensure the continuing review of factors set out… with respect to each designated country.”

The Canada-US agreement came into force in 2004 under the Immigration and Refugee Protection Regulations, SOR/2002-227 (“the regulation”). Under s 158.3 of the regulation, the US was designated as a country that complies with the relevant international conventions, and is, for the purposes of s 101(1)(e) or the IRPA, a designated country, and is thus a “safe country.” Section 159.5 provides certain exceptions.

Canadian Council for Refugees v Canada: Interpretation of the Legislation and the Vires of the Designation

 In 2009, the Supreme Court dismissed the appeal of the Federal Court of Appeal’s decision in Canadian Council for Refugees, Canadian Council of Churches, Amnesty International, and John Doe v Her Majesty the Queen [2009] 3 FCR 136, 2008 FCA 229 (CanLII). This challenge was to the Governor in Council’s designation of the US under the regulation, claiming, among other arguments, that the designation was ultra vires the power of the government to make regulations provided in the IRPA. The Canadian Council for Refugees and the other respondents on appeal argued that the IRPA created a condition precedent of compliance with the listed international documents in order to regulate that a state is a “safe country.”

The Federal Court of Appeal (FCA) found that the issue was a matter of statutory interpretation and that it was clear on a plain reading of the legislation that these were not condition precedents in an “absolutist” sense.” Instead, the FCA found that the factors are provided in order for the Governor in Council to assess whether or not the country is in compliance with the relevant international law. Once the Governor in Council has “given due consideration” to these factors and makes an assessment on them, it is not for the Court to review the compliance.

A New Context: Executive Order 13769

This challenge concluded when the SCC dismissed the leave to appeal in 2009, but rapidly shifting circumstances in US immigration law and the political climate in North America has created some buzz that a new challenge may be warranted, or that the Canadian government should take it upon themselves to suspend the Agreement.

On January 27, 2017, just one week after his inauguration, President Trump signed Executive Order 13769: Protecting the Nation from Foreign Terrorist Entry into the United States on the premise that attacks by “foreign nationals” legally admitted to the United States through visas and as refugees were ongoing and not curtailed by already in-place Post-9/11 laws (s 1 of the Executive Order). The Order instituted an immediate halt to travel into the US of people from Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen for 90 days with few exceptions (sec. 3(c)). During this time, the Secretary of Homeland Security was to conduct a review into the already issued visas of people from those countries to determine whether they are a security or public-safety threat (sec. 3(a)). The order also limited the number of refugees that could enter the US in 2017 and stated that none from Syria were to be accepted (sec 5).

Almost immediately after the Order was signed, it was criticized as a “Muslim ban” for targeting majority Muslim countries, with the exception of majority Muslim states in which Trump’s companies are active, according to critics. The Order itself also took quick effect. Hundreds of people were detained or turned away at US airports within the first day, and enormous protests broke out at airports across the country.

US Court Challenges to the Order

Various lawsuits were filed and were successful within the first few days of the coming into force of the Order. The initial outcomes of these cases and their status are outlined here:

• Darweesh v Trump: On January 28, 2017 a New York District Court Judge ordered that the government was enjoined and restrained from removing individuals in compliance with the Order.
• Mohammed v United States: On January 31, 2017, this US District Court in California enjoined and restrained the government from abiding by the Order and set a hearing for February 10^th for the government to show cause that the injunctive relief should not be granted.
• Louhgalam et al v Trump: On February 3, 2017, a US District Court in Massachusetts declined to renew the temporary restraining order on the Executive Order imposed by another Massachusetts judge.
• Aziz et al v Trump et al: On February 13, 2017, the District Court for Virginia granted an injunction of the Order as it applied in Virginia, finding that the Commonwealth will likely prevail on the merits of their claim and that irreparable injury would likely be suffered by it without the injunction.
• Sasour v Trump: The applicants have sought that the Order be found in contravention of the United States Constitution. No decision has been made yet.
• State of Washington & State of Minnesota v Trump: On February 3, 2017, the US District Court 9^th Circuit ordered in favour of the state parties and ordered a temporary restraining order until there could be a hearing to determine the serious questions that require “further inspection and deliberation.” The plaintiffs also proved that without the temporary restraining order, irreparable harm would be suffered. This decision had nation-wide impact, coming from a Federal Court of Appeal.

What’s Next for the Travel Ban? 

With widespread defeat of the Order in the court system, President Trump has announced that he will introduce a new Executive Order targeting the same seven countries, though he has not yet done so. In accordance with the Court of Appeal’s decision, he will need to write an Executive Order that passes Constitutional muster.

 The Future of the Safe Third Country Agreement

As the war over the travel ban continues to be waged between President Trump and his many opponents (including the courts), Canada has also felt a huge impact. Over the last few weeks, there has been an increase in refugee claimants and illegal immigrants from the US illegally  crossing the border into Canada, citing fear over their futures in the US. In order to avoid the jurisdiction of the Agreement, people are entering the country illegally in order to make their claims once already on Canadian soil.

Even so, after the Order was signed, Canadian Parliament debated and ultimately declined to increase the amount of refugees to be accepted into Canada and to suspend the Agreement in light of Trump’s new policies. While the government has stated that they will remain vigilant to what is taking place in the US, Canadian law has not changed and has not yet done much to denounce the Order. However, activist groups, legal students and professionals, much of the NDP, and the public at large have shown their distaste for Trump’s policy. It will be vital to pay attention to the content and outcome of the impending new Executive Order to see how the country and the government responds to the Agreement in that new context, especially in light of an already angered public.

It is likely that a new challenge to the Agreement will be introduced in Canadian courts, citing changed circumstances from 2009 when the last challenge concluded. Perhaps lawyers will insist that the Governor in Council is obligated to review the designation of the US again as per s 102(3) of IRPA and that, in light of the Executive Order, the increasingly Islamophobic government policy in the US, and the impacts felt at the Canadian border and beyond, it can no longer be deemed reasonable to call the United States safe.