International Law in Brief
Canadian Federal Court Rules U.S. Not Safe Third Country
By: Justine N. Stefanelli | July 23, 2020 - 9:24am
On July 22, 2020, the Canadian Federal Court ruled in Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship) that the country’s Safe Third Country Agreement (STCA) with the United States violates the Canadian Charter Rights and Freedoms. Each of the applicants in the case had traveled to the U.S., but, unable to obtain refugee status, made their way to Canada to apply for refugee status there. However, because the STCA requires asylum-seekers to apply for asylum in the first country in which they arrive, the applicants had to be returned to the U.S. The applicants in the case challenged the STCA, arguing that the U.S. is not a safe country for asylum seekers, as defined under the Agreement. The Court agreed. Discussing section 7 of the Charter, which safeguards the right to life, liberty, and security, Judge McDonald noted 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 [the applicants] 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.
The applicants had therefore successfully established a breach of section 7 that could not be justified by the respondents. Therefore, Judge McDonald concluded that the domestic STCA implementing regulations infringe section 7 and consequently have no force or effect. However, the Court suspended the invalidity of the implementing regulations for six months to give the Canadian Parliament time to respond to the judgment.