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.