Canada: Federal Court invalidates Canada-US Safe Third Country Agreement saying its impact “shocks the conscience” | Update

UPDATE: 21 August 2020: LRWC is disappointed that Canada’s federal government has chosen to appeal the 23 July 2020 Federal Court of Canada ruling that the Canada-US does not measure up to Canada’s Charter of Rights and Freedoms. Public Safety Minister Bill Blair issued a statement on Friday 21 August 2020 saying: “There are factual and legal errors in some of the Federal Court’s key findings. There are important legal principles to be determined in this case, and it is the responsibility of the Government of Canada to appeal to ensure clarity on the legal framework governing asylum law.”

UPDATE: 24 July 2020: Lawyers’ Rights Watch Canada (LRWC) welcomes the 23 July 2020 ruling of the Federal Court of Canada  that the Canada-US Safe Third Country Agreement (STCA) violates the Canadian Charter of Rights and Freedoms by allowing Canada to send refugee claimants back to the United States (US).

The Court found that sending refugee claimants back to the US to face the likelihood of arbitrary detention in US jails or immigration centres is a violation of the Charter right to liberty and security of the person.

The Court declared that s. 101(1)(e) of the Immigration and Refugee Protection Act and s. 159.3 of the Regulations are of no force or effect. The declaration of the invalidity of the Safe Third Country Agreement was suspended for six months so as to allow Parliament time to respond.

The Court found that:

The risks of detention and loss of security of the person, which are facilitated by the STCA, are grossly disproportional to the administrative benefits of the STCA, which was intended to help Canada and the US share responsibility for refugees in a way that complies with the Refugee Convention (CCR 2008 at para 75). In my view, the impact of being found ineligible under the STCA is grossly disproportionate, and out of sync with the objective of the legislation… Responsibility sharing cannot be positively balanced against imprisonment or the deleterious effects of cruel and unusual detention conditions, solitary confinement, and the risk of refoulement. In my view, to find otherwise would be “entirely outside the norms accepted in our free and democratic society” … Gross disproportionality can be established based upon the impact on a single person. In my view, [the] evidence… meets this test and is sufficient to “shock the conscience”.

LRWC has been among numerous organizations urging the Canadian government to revoke the STCA, which allows Canada to reject asylum seekers entering from the States on the grounds that they should have applied for asylum in the US.

“This important ruling should be implemented immediately,” said LRWC’s Executive Director, Catherine Morris. “It is vital that not one more asylum seeker be sent back to the US, which is currently anything but safe for refugees. US authorities have been systematically violating international law by sending refugees back to the dangerous places they are escaping,” she added.

LRWC’s 2018 letter to Prime Minister Justin Trudeau and Immigration Minister Ahmed Hussen expressed grave concern about “serious human rights violations against migrant children entering the US, including serious international crimes against them and lack of access to justice” and argued that the “Safe Third Party agreement has become a clear hazard to refugees running for their lives…[and] works in opposition to UN treaties and other international law clearly intended to save their lives or freedom.”

The letter pointed out that:

Since Canada considers the US to be a “safe country,” it is almost impossible for persons in the US to make successful refugee claims in Canada. The Safe Third Country agreement allows Canada to return refugees to the US, even when the US authorities then return them to the dangers of the countries they left.

Amnesty International was one of the applicants in the Federal Court case. Amnesty International Canada’s Alex Neve said that despite the six-month leeway given by the court, “it is imperative that Canada immediately end the return of claimants to the US.” The STCA has “been the source of grave human rights violations for many years” and “cannot be allowed to continue one more day,” he stressed.