Canadian Court Rules Safe Third Country Deal with United States Invalid

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Canadian Court Rules Safe Third Country Deal with United States Invalid

A Canadian judge has ruled, which the Trudeau Liberals put in place after the Trump election led to a massive increase in asylum seekers crossing into Canada in 2016, to be invalid. The court has given Parliament six months to respond to the ruling. Calling the US under Trump a safe country for immigrants and asylum seekers is criminal. 

A Canadian court on Wednesday ruled invalid a pact that compels asylum seekers trying to enter Canada via the American border to seek sanctuary first in the United States, saying their detention there violates their human rights. Under the so-called Safe Third Country Agreement between the two neighbors, asylum seekers at a formal border crossing traveling in either direction are turned back and told to apply for asylum in the country in which they first arrived. ...

Lawyers for refugees who had been turned away at the Canadian border challenged the agreement, saying the United States does not qualify as a “safe” country under U.S. President Donald Trump.

Nedira Jemal Mustefa, one of the refugees turned back, described her time in solitary confinement in the United States as “a terrifying, isolating and psychologically traumatic experience,” according to the court ruling. 

“We’re all too familiar with the treatment that the U.S. metes out to asylum seekers,” said Maureen Silcoff, president of the Canadian Association of Refugee Lawyers. “This case highlights the conditions that people face when Canadian officials turn them around at the U.S. border.”

More than 50,000 people have illegally crossed the Canada-U.S. border to file refugee claims over the past four years, walking over ditches and on empty roads along the world’s longest undefended border.

Canada has sought to stem the human tide of asylum seekers that flowed into the country starting in 2016, after Trump promised to crack down on illegal immigration. Experts have said suspending the agreement would have huge implications for the Canada-U.S. relationship.

Federal court judge Ann Marie McDonald ruled that the agreement was in violation of a section of Canada’s Charter of Rights that says laws or state actions that interfere with life, liberty and security must conform to the principles of fundamental justice. She suspended her decision for six months to give Parliament a chance to respond to the ruling, which is not final and can be appealed to the Federal Court of Appeal and then the Supreme Court if necessary.

Canada’s justice ministry and immigration ministry had no immediate comment, nor did officials in the U.S. embassy in Ottawa.




Here's more on the voiding of the safe third country agreement. 

Justice Ann Marie McDonald said the agreement — which stops people from entering either Canada or the U.S. at official Canada-U.S. border crossings and asking for asylum — violates the section of the Charter guaranteeing "the right to life, liberty and security of the person"

The case was brought forward by the Canadian Council of Refugees, Amnesty International, the Canadian Council of Churches and a number of individual litigants who argued that by returning ineligible refugee claimants to the U.S., Canada exposes them to risks — including detention and eventual deportation to countries where they could face harm.

"The applicants have provided significant evidence of the risks and challenges faced by STCA ineligible claimants when they are returned to the U.S.," McDonald wrote. ...

"The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by U.S. officials. In my view, the risk of detention for the sake of 'administrative' compliance with the provisions of the STCA cannot be justified."

The Safe Third Country Agreement states that refugee claimants are required to request refugee protection in the first safe country they arrive in — meaning Canadian border officials would send back to the U.S. any would-be refugee claimants arriving at an official border crossing into Canada. One of the applicants in the case, Nedira Mustefa, is a Muslim woman from Ethiopia who was detained in the U.S. after her attempt to enter Canada. She was held in solitary confinement for one week. According to the court decision, Mustefa described her time in solitary as "a terrifying, isolating and psychologically traumatic experience."  

"Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons," reads the document. "Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds." Mustefa told the court she "felt scared, alone and confused at all times" and that she "did not know when [she] would be released, if at all."

In her decision, McDonald said she found the evidence clearly demonstrates that those returned to the U.S. by Canadian officials are "detained as a penalty. Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA," she wrote.

The government — the respondents in the case — argued that while failed claimants are subject to detention in the U.S., there is a fair detention review process available. McDonald rejected that argument."Suggesting that those who are imprisoned will eventually be released is not sufficient evidence of minimal impairment," she wrote.

The government also argued that striking down the agreement would lead to an increase in claims and put the overall refugee system at risk. "However, in my view, the evidence offered by the respondents on this point is weak," wrote the justice. "In the past, Canada has demonstrated flexibility to adjust to fluctuations in refugee numbers in response to needs." ...

A spokesperson for Public Safety Minister Bill Blair said the department is "aware of the Federal Court's decision and [is] currently reviewing it. "Although the Federal Court has made its ruling, that decision does not come in effect until January 22, 2021. The Safe Third Country Agreement remains in effect," said press secretary Mary-Liz Power.

Michael Moriarity Michael Moriarity's picture

This sets up an interesting political situation. Let's assume that this judgment survives all appeals, and is the law of Canada. What then? I see only 2 possibilities.

  1. The government could accept that the US is not a safe third country, and start accepting all refugee claimants at the US border, or
  2. The government could pass legislation using the notwithstanding clause to overrule the Charter right on which the ruling is based.

Suppose such legislation were brought before the HoC by the Trudeau government. Would the Cons be forced to support it? If they voted against it and brought down the government, they would be hard pressed to argue in the subsequent election that they are more hard line on immigration than the Libs. After all, there would be hundreds of refugees a day pouring over the border, thanks to the Cons' refusal to support the Liberal legislation. The Liberals wouldn't hesitate for a second before attacking the Cons from the right on this file.

laine lowe laine lowe's picture

I agree fully with the court ruling but it will be interesting to see whether it's appealed.


The judge in this case summarized the problem succintly: 

Federal court judge Ann Marie McDonald ruled that the deal was in violation of a section of Canada's Charter of Rights that bans the government from interfering in the right to life, liberty and security.

"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," Judge McDonald said in her ruling.

"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 7 of the [Charter of Rights and Freedoms]," she continued.


Some advocates see the court decision as a major victory for asylum seekers. 

The ruling is being hailed as a major victory for refugee rights — and drawing calls from advocates for Ottawa to immediately and unilaterally suspend the agreement with the United States.

“Security of the person encompasses freedom from the threat of physical punishment or suffering,” Justice Ann Marie McDonald wrote in her 62-page decision, which was released Wednesday. 

“The accounts of the detainees (in the U.S.) demonstrate both physical and psychological suffering because of detention, and a real risk that they will not be able to assert asylum claims.”


However, there is a mixed assessment of the extent to which the court's decision in this case will impact the plight of asylum seekers trying to get into Canada from the US.

University of Windsor law professor Vasanthi Venkatesh says a new ruling made by the Federal Court of Canada this week will make it easier for those looking to apply for refugee status at Canadian borders. 

"It's a momentous decision," Venkatesh told CBC's Windsor Morning on Friday, adding that advocates have pushed for this for a long time. 

On Wednesday, the Federal Court of Canada struck down the Safe Third Country Agreement, a plan that has been in place since 2004. The agreement has meant that refugees arriving in the United States and who present themselves at the border looking to make a claim in Canada are denied, with few exceptions. Typically, these asylum seekers are sent back to the U.S. to make the claim there. 

This is because the agreement recognizes both countries as "safe" for migrants and requires refugee claimants to request asylum in the first country they arrive. This has led to thousands of asylum seekers crossing at unofficial border crossings like Roxham Road, on the border between Quebec and New York State. ...

While it seems unusual that somebody who wants to be in Canada would initially land in the U.S., Venkatesh said it' happens because it's "difficult" to come to Canada. "I mean we are geographically isolated with just one land border with the United States and it's very difficult to get a visa in to Canada for those who can make it to Canada," she said. ...

Mike Morency, the executive director of Windsor's Matthew House Refugee Centre, said that while the ruling is a good step forward, it'll be some time before an actual change occurs. "The decision this week is an important one and we are cautiously optimistic," he said. "Really the decision verifies what refugee advocates have been claiming for a while now...that the United States is not in fact a safe and fair country for refugees to have their claim heard." 

Until they know what the federal government will do in light of this ruling, Morency said nothing actually changes. He added that of those he has spoken to in the refugee sector, many anticipate that the government will appeal the decision and that "the issue will drag on for many more years."

If this is the case, he said it will continue to leave asylum seekers feeling unsafe and prevent them from "rebuilding their lives. When there is lack of clarity, people are left hanging...and that's not right, we want people to be back to quickly settle into our community [and] rebuild their lives," he said. "That is held back when their status is in  limbo."



Other asylum advocates also expressed cautious optimism about the court ruling. 

Advocates in Nova Scotia say they are “cautiously optimistic” after Canada’s Federal Court recently ruled that the Safe Third Country Agreement between Canada and the United States to be unconstitutional and in violation of the Canadian Charter of Rights and Freedoms. “It’s a landmark ruling,” said Julie Chamagne, executive director of the Halifax Refugee Clinic. “I’m cautiously optimistic (the federal government) won’t appeal.” ...

“(It’s) an important, but cautious victory for refugee rights,” said Tina Oh, a member of the advocacy group No One is Illegal – Halifax/K’jipuktuk. ...

In an email statement, Mary-Liz Power, spokesperson for Public Safety and Emergency Preparedness Minister Bill Blair, said the government is “currently reviewing” the Federal Court’s decision and that the STCA continues to remain in effect over the next six months. Power noted all foreign nationals making a claim for refugee protection that do not meet the exemptions under the STCA will be directed back to the U.S. in the meantime. ...

Champagne said the STCA is especially concerning amid the COVID-19 pandemic because it may push migrants to enter Canada through irregular border crossings, putting their health and safety as well as that of others at risk. “Especially during the pandemic, it’s important for people to be able to come documented, to have regular channels of migration and ability to make a refugee claim, ability to quarantine, ability to access public health and to not get sent back to detention,” she said. ...

Oh said asylum seekers and migrant workers are making valuable contributions in Nova Scotia during the pandemic by working in essential positions, including in agriculture and health care, yet they are being treated as “expendable and disposable, just like the treatment of migrants at the border,” pointing to asylum seekers recently seeing their shifts suddenly cancelled at Northwood.

Oh added there are “anti-refugee provisions” in Bill C-97 that are of concern, highlighting a ground that makes a person ineligible to make a refugee claim in Canada if they have done so in another country, which she said “essentially closes the door on so many asylum seekers. We need to see an end to all these policies, including the STCA immediately, we need to see an end to the policies of turning our backs to migrants due to COVID responses, as well as striking down the changes that have been made in Bill C-97,” said Oh.

Since 2017, roughly 58,000 irregular border crossers have made asylum claims in Canada. About 14,500 of those claims have been accepted and 12,000 have been rejected, while 29,600 are pending a decision, according to the Immigration and Refugee Board of Canada.