In a move that surprised many, the Federal Court of Canada recently determined that the Canada-USA Safe Third Country Agreement (STCA) violates Section 7 of the Canadian Charter of Rights and Freedoms: Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship), 2020 FC 770
The STCA is a long-standing pact between the US and Canadian governments. It allows Canadian authorities to send potential asylum-seekers who appear at official Canada-US land border crossings back to the US unless they fit into narrow exceptions, such as having family members in Canada.
The key factor swaying the court was evidence that US authorities detain individuals who are returned to the US by the Canada Border Services Agency after attempting unsuccessfully to cross over to Canada to claim asylum. McDonald J. stated “[t]he 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.”
The Court suspended its declaration of the STCA’s invalidity for 6 months to allow Parliament time to respond. The Court also certified two questions, which gives the Federal Government the option of appealing the decision to the Federal Court of Appeal.
The result is that the STCA remains in effect for now and at least until January 22nd, 2021. However, the decision is a significant victory for refugee advocates who have long argued that US policies towards refugees—particularly in the Trump era—invalidate the basis for the STCA, which is that both Canada and the US are safe countries to claim asylum, and that potential asylum seekers must therefore claim in the country of first arrival, rather than choosing between the two.
The STCA only applies at official Canada-US land border crossings—it does not affect claimants who cross irregularly into Canada at non-official points of entry. As such, an often-criticized impact of the STCA is that it incentivizes asylum seekers to cross irregularly into Canada. If the Agreement is no longer in place, it is anticipated that irregular crossings will significantly decrease, but Canada is likely to see a simultaneous increase in claimants appearing at official ports, particularly if the policies of the Trump Administration remain in place.