The Federal Court of Canada ruled Wednesday that the country’s Safe Third Country Agreement with the United States is unconstitutional because the consequences of U.S. detention violate the rights of asylum seekers.
The decision upends a deal Ottawa already wanted to revamp in response to the stream of asylum-seekers heading north from the States.
While the court did not consider if designating the U.S. a “safe” country for refugees ran afoul of Canadian law, it did find that the law and regulations enacting the agreement violate a section of the Charter of Rights and Freedoms that guarantees life, liberty and security of person.
The agreement will stay in place for another six months to give Parliament time to respond.
Context: Under the existing deal, Canada may return migrants seeking asylum back to the U.S. if they try to enter the country at a land port of entry. It does not apply if they arrive from the U.S. by air or by sea — or by land in between formal ports of entry. Numbers of those “irregular” migrants have swelled during President Donald Trump’s tenure, particularly in Quebec.
Human rights groups and a coalition of refugees challenged the agreement last year, not long after the Liberals eked out a minority victory at the polls. The party’s campaign platform vowed that the next government would work to “modernize” the Safe Third Country Agreement with the U.S., without providing many details.
Key findings: The court declined to opine on the asylum system in the United States, instead focusing on what happens when the deal sends an asylum-seeker back to the U.S. Judge Ann Marie McDonald wrote in the opinion that the Canadian government isn’t “immunized” from the consequences the risk of detention posed for those refugees.
“Canada cannot turn a blind eye to the consequences … in its efforts to adhere to the [agreement],” she said. “The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty.”
What’s next: The Trudeau government has until Jan. 22 to determine how to proceed. It will somehow have to overhaul its deal with the U.S. during an election year in which immigration is a hot-button issue, or appeal the decision.
Until then, the Safe Third Country Agreement remains in effect.
“We are aware of the Federal Court’s decision and are currently reviewing it,” said Mary-Liz Power, a spokesperson for Public Safety Minister Bill Blair.
The organizations that sued Ottawa over the agreement called on the government to immediately comply with the spirit of the ruling and to decline to appeal it.
“The Safe Third Country Agreement has been the source of grave human rights violations for many years, unequivocally confirmed in this ruling,” said Alex Neve, secretary general of Amnesty International Canada. “That cannot be allowed to continue one more day; and is of even greater concern now given the prevalence of COVID-19 in immigration detention in the United States.”