Enforcement of Canada’s Safe Third Country Agreement with the US violates constitutional rights

Two years ago I gave an interview to the Toronto Globe and Mail about what is known as the Safe Third Country Agree­ment (STCA), by which Canada and the US recog­nise each other as countries in which people, with a few speci­fied excep­tions, can safely seek refuge. Canada has used the STCA to bar people arriving by land from seeking refuge in Canada. I opined that the STCA and its appli­ca­tion violated the consti­tu­tion, in particu­lar Section 7 of the Charter on «the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the princi­ples of funda­mental justice», and also that it violated inter­national conven­tions on refugees and protection from torture.

Today, in Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770, the Federal Court agreed. Claimants from El Salvador, Ethiopia, and Syria who arrived in Canada by land had been declared inadmis­sible and denied the opportu­nity to seek refuge, in contra­ven­tion of their rights under inter­national law. Several of them managed to obtain assistance from Canadian lawyers, but one was sent back to the US, where she endured «a terrifying, isolating and psycho­logically traumatic experi­ence» (at para 96) of solitary confine­ment, deten­tion with crimi­nals, disrespect of her religion, and depri­va­tion of adequate food and heat. Abun­dant evi­dence showed that people whom Canada returns to the US pursuant to the STCA are routinely detained for pro­tracted periods (at paras 98–99, 107–13). In addition, the US has repeatedly violated the inter­national princi­ple of non-refoulement by sending asylum seekers back to their countries of origin even though they would likely face grave danger of persecu­tion; many of these people have indeed been murdered (at para 105).

The court held that Canada’s application of the STCA amounts to penalising people just for claiming refuge (at para 139). Sending them back to a place «where they are immedi­ately and automati­cally imprisoned by US authorities» (at para 103) consti­tutes a viola­tion of their rights to liberty under Section 7. The effects of the applica­tion of the STCA are grossly dispropor­tionate to the purpose of the relevant legis­lation; indeed, those effects «shock the conscience» of the court (at para 137). The court there­fore declared that the legisla­tive provi­sions that exclude refugee claimants arriving from the United States are of no force or effect.

It is worth noting that the court has suspended the operation of its rulings for six months, so that Parlia­ment may respond (probably by amending the legislation), and has also approved two questions for appellate review.

If you need assistance with Canadian refuge or immi­gra­tion, you may benefit from legal advice. Feel free to schedule an initial consu­lta­tion with me.