Federal Court rules US not safe for refugees, Canada-US ‘Safe Third Country Agreement’ unconstitutional

The STCA allows specific refugee claimants to be sent back to the US from Canada.

Multiple refugee advocacy groups initiated the court challenge, including Amnesty International, the Canadian Council for Refugees and the Canadian Council of Churches.

The decision was made by Justice Ann McDonald and says that refugees cannot be sent back to the US because it is not considered a safe country for them anymore.

"For the reasons outlined below, I have concluded that the actions of Canadian authorities in enforcing the STCA result in ineligible (refugee) claimants being imprisoned by US authorities," wrote McDonald.

"I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section [seven] of the (Charter of Rights and Freedoms)."

Canadian border officials detained a female applicant from Ethiopia who then had to return to the US. She then stayed in solitary confinement for roughly a week and was released on bond after being detained for three more weeks.

Mcdonald’s ruling says that a "foreseeable" consequence of the STCA is imprisonment of refugees. This violates the Charter because claimants are deprived of their liberty as a result of making a refugee claim.

"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," McDonald noted.

The law will remain in place for the next six months, which is how long it takes for the decision to take effect. In that time period, the government can suspend the STCA or possibly appeal the decision.

Canadian Council for Refugees executive director Janet Dench called the decision a victory and is asking the government not to appeal the decision.

"We are aware of the Federal Court’s decision and are currently reviewing it. Although the Federal Court has made its ruling, that decision does not come in effect until January 22nd 2021. The Safe Third Country Agreement remains in effect," said Mary-Liz Power, a spokesperson for Minister Bill Blair.

"We are certainly urging the government to take time and to take into account what the court has found, which is that people’s fundamental rights are being violated, and to withdraw from the agreement, to stop sending people back to the US," she said.

Exemptions in the STCA include asylum seekers with any family members in Canada or minors who are unaccompanied and without a parent in the US.

The agreement is supported by the idea that the US and Canada believe each other to be safe countries for asylum seekers.

Approximately 58,000 asylum claims have been made by irregular border crossers since February 2017 in Canada.

About 14,500 have been accepted while 12,000 have not. Roughly 29,600 claims are still undecided.