Safe Third Country Agreement Struck Down


Safe Third Country Agreement between US and Canada – in effect since Dec 2014

  • CDN and US declare each other as safe for refugees
  • Applies to refugees arriving from US at a Canada land POE … with some exceptions (family member in Canada, unaccompanied minors, stateless individuals)

First legal challenge to the constitutionality of STCA in 2005

2007 – Justice Michael Phelan of FC found that the designation of US as safe third country violated refugees’ Charter rights to life, liberty, and security of person

2008 – Government appeals the finding. Justice Phelan’s decision is overturned. Later … leave for SCC denied.

Ongoing calls for Canada to end safe third country agreement with US … US less safe than ever for refugees especially after the Trump Administration beefed up its deportation and detention of asylum seekers. Treatment of asylum seekers in the US is not keeping with the spirit/objective of STCA

The Decision

  • Enforcement of STCA results in ineligible claimants being imprisoned by US authorities
  • US is not a safe country for refugees sent back from Canada due to risk of imprisonment – conditions asylum seekers said they had faced while in detention in the US were cited
  • Imprisonment violates section 7 Charter rights, unconstitutional
  • US practice in detaining & punishing asylum seekers, routine detention in inhumane conditions
  • Review of Affidavit evidence from one of the Applicants reveals … She describes her time in solitary confinement as “a terrifying, isolating and psychologically traumatic experience.”
  • “the risk of detention for the sake of “administrative” compliance with the provisions of the STCA cannot be justified”

***Note: Justice McDonald is not comparing the US refugee system to Canada or passing judgment on the US refugee system…the “narrow focus” of the decision is the “consequences that flow when a refugee claimant is returned to the US by operation of the STCA.

What’s next

Decision does not take effect for 6 months

Canada’s justice department has to decide whether they want to appeal the ruling or suspend STCA. If appeal, Canada could seek stay of ruling (“business as usual”) until appeal is decided on.