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Asylum seekers cross into Canada from the US border near a checkpoint on Roxham Road near Hemmingford, Quebec.
Canada’s top court says US safe for refugees – more or less
The Supreme Court of Canada has ruled that the Safe Third Country Agreement, which governs refugee migration between Canada and the United States, is constitutional. Refugee groups had said the US was not a “safe” country and that returning refugees who fled north violated the Canadian Charter’s Section 7 guarantee of “life, liberty, and personal security.” The court said otherwise.
The decision follows the March deal struck between Canada and the US to close the irregular border crossings not covered by the 2002 agreement. Refugee migration experts warned the amendment would make life more dangerous for refugees, and eight migrants died soon after while trying to cross the St. Lawrence River to reach the US from Canada. Data from the US Customs and Border Protection before and after the March deal show an initial downturn in migrant encounters after the deal but an increase in May. Canadian data is pending, but Ottawa has acknowledged that the amendment will be tough to enforce and that the use of clandestine irregular routes could raise the risks of human trafficking and sexual violence while putting children and elderly migrants at greater risk.
In the court’s decision, Justice Nicholas Kasirer wrote that legislative “safety valves” guard against “real and not speculative risks of refoulement from the United States.” The court also noted that while some of the concerns cited by advocates were legitimate, such as poor holding conditions, migrants had access to “curative measures” like resident permits and humanitarian and compassionate exemptions.
So the STCA passed one hurdle … but the court also sent the case back down to the Federal court for review on the grounds of a possible Section 15 violation of the Charter. Section 15 covers equality under the law and protects from “discrimination based on race, national or ethnic origin, color, religion, sex, age or mental or physical disability.” Advocates argue migrant rights are being violated based on sex and religion, with the US providing inadequate protections and accommodations for either.
While some want the STCA scrapped, both Washington and Ottawa prefer to keep it in place. Both Joe Biden and Justin Trudeau are facing elections in 2024 and 2025 in which immigration will be center stage. Biden needs to limit the porousness of the northern border, and Trudeau needs to reduce irregular migration via Quebec, a province with huge political sway.
Whether the new STCA deal holds, however, is up to the courts, where round two on its constitutionality is about to get underway.Justice Russell Brown attends an official welcome ceremony for Justice Nicholas Kasirer in the courtroom of the Supreme Court of Canada in Ottawa.
Top Conservative Canadian judge forced out
On Monday, Canadian Supreme Court Justice Russell Brown resigned unexpectedly amid an investigation by the Canadian Judicial Council over his alleged drunken harassment of a female at an Arizona resort in January. Brown maintained his innocence, and his lawyers were confident he would be vindicated. But he resigned anyway, citing personal and family strain along with the impact of his absence on the court (he’d been away for four months during the investigation) as reasons for stepping down.
Brown was appointed to the court by former PM Stephen Harper, a Conservative. The court still has a couple conservative voices, but legal experts have noted that it has lost a fine legal mind in Brown.
Rumors had spread that the CJC could hold a public hearing into the alleged incident, and the 44-member council can, in extreme cases, recommend that Parliament vote to remove a judge.
Had this affair played out in the US, the outcome would likely have been different. In Canada, the CJC upholds professional judicial ethics, and nonpartisan Supreme Court norms are strong across branches of government. SCOTUS does not have a code of ethics, nor is it bound by the Code of Conduct for United States Judges. The process for removing a US justice requires impeachment in the House of Representatives followed by trial and conviction in the Senate. That’s only happened once – in 1805. In a country where top judicial appointments are both politicized and partisan, like the legislature itself, holding top judges to account seems impossible – especially when the party that controls the process and holds a majority in the House or Senate (or both) is the same party that nominated the judge in the first place.
That’s good news for Justice Clarence Thomas. News recently broke that Thomas was gifted luxury vacations by a billionaire Republican donor that were not disclosed. Thomas refuses to resign despite the massive hit to public trust in the court, which was already low. Compare that to Canada’s Brown, who left despite there being no finding of wrongdoing, citing “the common good.”
PM Justin Trudeau is now set to appoint his sixth judge to Canada’s Supreme Court since taking power in 2015. His predecessor, Harper, appointed eight, including the man Trudeau would later promote to chief justice. Former President Donald Trump appointed three justices in four years, the most since Ronald Reagan appointed four in the 1980s. Like Reagan, Trump’s appointments were designed to remake American jurisprudence – and society – in the Republican mold. Last year’s overturning of Roe v. Wade was part of that vision.
But in Canada, court appointments are far less partisan, and they are not designed to further express ideological agendas. Supreme Court appointments north of the 49th parallel also do not require a vote from the legislature – the position is appointed by the executive. In 2016, Trudeau further depoliticized the process by creating an independent and non-partisan Advisory Board to suggest a list of three to five names from which the PM would choose an appointee after the Minister of Justice consults with stakeholders.
We’ll be watching to see whether his next judicial appointment, amid rising partisan toxicity in Canada, tests that norm.