The Canadian government will be back in court on Tuesday defending its agreement with the United States to turn back asylum-seekers in an effort to overturn a federal court decision that found the pact violated Canada's Charter of Rights and Freedoms.
A victory for the government would mean asylum-seekers would continue to be turned back at the Canadian border under conditions a court found violated their rights. A loss would force Ottawa to rethink refugee management at the world's longest undefended border.
Under the Safe Third Country Agreement, signed in 2002, asylum-seekers trying to enter one country through a land border crossing are turned back on the basis they should make their claim in the first safe country in which they arrived.
Last year, a Canadian federal judge found the treaty violates individuals' right to life, liberty and the security of the person in part because of the likelihood people turned back to the United States would be detained, and also due to the conditions under which they would be detained.
In its written submission ahead of Tuesday's hearing, the Canadian government argued the federal court failed to take into account not only US safeguards of people subject to detention but Canada's monitoring of US detention practices.
The laws in question do not require Canadian officials to turn back individuals in circumstances that would "shock the conscience" of Canadians, the submission reads.
The Canadian government has indicated it wants to expand the agreement to cover the whole border, not just formal ports of entry.
During former US President Donald Trump's term in office, tens of thousands of asylum seekers crossed the Canada-US border in between formal border crossings to skirt the agreement.
President Joe Biden has pursued a more immigrant-friendly agenda in his first weeks in office. But Canada cannot use that to argue for the United States as a safe country because an appeal has to deal with what is already on the record.
The argument defending US immigration detention "flies in the face of [Canada's] public persona as a refugee-welcoming country that purports to support humanitarian endeavours around the world," said Jamie Chai Yun Liew, a law professor at the University of Ottawa with a focus on immigration law.
And problematic US practices were not specific to Trump, Liew said.
Hearings are scheduled to take place in the Federal Court of Appeal on Tuesday and Wednesday.