Safe Third County Agreement (STCA) Unconstitutional

July 22, 2020

The Federal Court released an important decision today, ruling the Canada-U.S Safe Third Country Agreement as unconstitutional. This agreement allowed Canadian authorities to send refugee claimants back to the United States, and prohibited most foreign nationals from seeking refugee protection in Canada from the United States, with only a few exceptions.

Here is the link to the decision.


In the decision, the Honourable Justice Ann McDonald states clearly:

[103]  Ms. Mustefa’s imprisonment is a clear illustration of the limitation on liberty flowing directly from a finding of ineligibility under s. 101(1)(e) of the IRPA.  It is my conclusion, based upon the evidence, that ineligible STCA claimants are returned to the US by Canadian officials where they are immediately and automatically imprisoned by US authorities.  This is sufficient to establish that s. 7 liberty rights are engaged. [emphasis added}

The Court also questions the impact of sending refugee claimants back to the United States where they will be automatically detained:

[135]  The question is whether the evidence of the impact of the STCA demonstrates that the Charter deprivation is “out of sync” with the objectives of the legislation.  Ms. Mustefa’s evidence, and the evidence of the ten anonymized affiants, establishes that imprisonment flows automatically from a finding of ineligibility under the STCA.  Failed claimants are detained without regard to their circumstances, moral blameworthiness, or their actions.  They are detained often without a release on bond and without a meaningful process for review of their detention.  While, responsibility sharing may be a worthwhile goal, this goal must be balanced against the impact it has on the lives of those who attempt to make refugee claims in Canada and are returned to the US in the name of “administrative efficiency” (Bedford at para 121).  In my view, imprisonment cannot be justified for the sake of, and in the name of, administrative efficiency.

Justice McDonald concludes:

[138]  The Applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the US.  Although the US system has been subject to much debate and criticism, a comparison of the two systems is not the role of this Court, nor is it the role of this Court to pass judgment on the US asylum system.  The narrow focus here is the consequences that flow when a refugee claimant is returned to the US by operation of the STCA.  The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by US officials.  In my view, the risk of detention for the sake of “administrative” compliance with the provisions of the STCA cannot be justified.  Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA.  The evidence clearly demonstrates that those returned to the US by Canadian officials are detained as a penalty.

[139]  The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built.

[140]  For these reasons, I conclude that the Applicants have established a breach of section 7 of the Charter.

This decision is succinct and well-written. More importantly, it is well-reasoned and highlights a major flaw in the operation of the STCA. However, the immediate impact of the decision is uncertain as the Court has suspended the application of the decision for six months, and the government may choose to pursue an appeal. Hopefully, the sound reasoning of the Federal Court will convince the government not to seek an appeal of the decision. This seems particularly important in light of the volatile, unstable and clearly vocal anti-immigrant stance that the American government has taken under the present President.

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