NCCM and Canadian Muslim Lawyers Association raise concerns about Safe Third Country Agreement at Supreme Court

NCCM and other community organizations appeared before the Supreme Court of Canada last week to highlight the vulnerabilities of Muslim refugees who show up and are turned away along the US-Canada border because of an arrangement called the Safe Third Country Agreement. NCCM argued for an individualized assessment of Charter rights which accounts for the identity (religious and otherwise) of claimants.

The current arrangement allows Canada to turn back refugee claimants who show up at the border on the basis that they must try to get asylum in the US first (the country where they first arrived), since we consider the US to be a "safe country" for refugees and asylum seekers to stay in.

The Safe Third Country Agreement has been in place for 18 years.

NCCM counsel and the Canadian Muslim Lawyers Association (CMLA) submitted to Canada’s top court that such an agreement allows for easy violation of Canada’s commitment to refugee and human rights. By sending prospective refugees back to the US, Canadian border officials are often consigning such marginalized and vulnerable people to detention and mistreatment.

For instance, one Muslim refugee who was turned back got thrown into a US detention facility under solitary confinement. She was given what she suspected was pork in her meals—which she doesn’t eat for religious reasons. She lost over 15lbs under such circumstances after a month or so in her cell.

“Canada is contracting out our responsibility towards marginalized claimants by tossing them back into the US, where Muslim detainees are often subjected to a system rife with racial profiling and religious discrimination,” said Nusaiba Al-Azem, NCCM Director of Legal Affairs.

A Federal Court decision in 2020 decided that the current arrangement generates consequences that are "inconsistent with the spirit and objective" of the agreement itself. But this decision was later overturned by the Federal Court of Appeal.

The detention system in the US has been "widely condemned for its serious violations of international minimum standards," states Al-Azem, along with other critics of the STCA. The current arrangement allows Canada to toss aside any need to follow up with claimants being turned away, to make sure that their rights are not being violated across the border.

This is an unacceptable, yet deeply entrenched, reality that Canada has been directly complicit in for 18 years. It must stop.