Rainbow Railroad is deeply disappointed and concerned by the Supreme Court of Canada’s decision to uphold the Canada-U.S. Safe Third Country Agreement (STCA), which was released this morning.
Although the STCA has been upheld, Rainbow Railroad is pleased that the battle is not over as the case will be returned to the Federal Courts for determination of whether the STCA is discriminatory in its impact on marginalized groups of refugee claimants. Rainbow Railroad’s experience is that the STCA is discriminatory in that it poses significant barriers to the safety of LGBTQI+ asylum seekers and migrants, who, in seeking asylum, are now at greater risk of being deported to their home countries where their safety will be in jeopardy.
Since 2004, the United States has been designated by Canada as a safe country for refugees, under the STCA between the two countries. Through the agreement, asylum claimants arriving at a land port of entry to Canada from the U.S. are deemed to be ineligible for refugee protection in Canada. As intervenors in the case before the Supreme Court of Canada, Rainbow Railroad provided both a written factum and an oral argument before the Court. We argued that, just as the Canadian Supreme Court has recognized that Canada cannot return individuals to countries where they face torture, returning individuals to countries where they face persecution on account of their membership in a particular social group, or other protected ground, a violation known as ‘refoulement’, is also unconstitutional. As an organization that is directly involved in the evacuation and safe movement of persecuted LGBTQI+ persons across international borders, Rainbow Railroad’s work is uniquely impacted by the STCA.
“We asked the Court to build upon its previous jurisprudence and situate refugee rights squarely in s. 7 of the Charter,” said Rainbow Railroad Founding Chair, Michael Battista, who represented the organization before the Court. “Today’s decision is a disappointment for refugee rights generally, and for the rights of the LGBTQI+ community, who find themselves increasingly at risk of persecution worldwide.”
Earlier this year, the Canadian government made the decision to expand the agreement to apply to unofficial border crossings like Roxham Road. This decision, alongside the Court’s decision to uphold the STCA, erodes the right to seek asylum, and will result in individuals being returned to dangerous circumstances without individualized consideration of their case. This decision disproportionately impacts marginalized communities, including people of color and LGBTQI+ persons.
Rainbow Railroad continues to call for the repeal of the Canada-U.S. Safe Third Country Agreement, and in addition we urge the Canadian government to reconsider the recent expansion of the agreement and the closure of Roxham Road. Canada must do more to ensure safe access to asylum, and uphold the rights of LGBTQI+ asylum seekers.