Marin, CA (July 22, 2020) – The Federal Court of Canada, returned an historic decision today, striking down the Safe Third Country Agreement (STCA) between Canada and the United States. The decision from Justice Anne Marie McDonald found the agreement to be unconstitutional, holding that it violates the guarantee in the Canadian Charter of Rights and Freedoms of the “rights to life, liberty and security of the person[.]” Under the STCA, which was originally implemented in 2004, asylum seekers arriving at the U.S.-Canada land border are, with limited exceptions, denied the opportunity to apply for protection in Canada and instead summarily returned to the United States, where they are held in immigration detention while they pursue their claims.
Justice McDonald ruled today that the United States’ practice of imprisoning asylum seekers constitutes a deprivation of the right to liberty. She also found that the often squalid and unsafe conditions in U.S. immigration detention centers violate asylum seekers’ right to security under the Canadian Charter. Justice McDonald specifically cited to evidence regarding the U.S. government’s detention of asylum seekers in freezing holding cells, use of solitary confinement, and failure to ensure adequate and timely access to medical care. In addition, Justice McDonald held that detention itself impedes the ability of asylum seekers to obtain legal counsel, increasing their risk of being wrongly denied protection and returned to persecution.
The case before Justice McDonald was brought by the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches. The plaintiffs were a Salvadoran woman and her children fleeing grievous gang violence, an Ethiopian woman fearing ethnic attacks in her home country, and a Syrian family who initially sought asylum in the United States but decided to seek protection in Canada instead, fearing rising hatred against Muslims following the issuance of the Trump administration’s first Muslim ban.
In making her decision, McDonald weighed the testimony of numerous experts on U.S. law and policy, who addressed the many ways in which the STCA fails to meet international norms and standards. CGRS Director Professor Karen Musalo, who was one of the witnesses relied upon by the court, was heartened by McDonald’s decision today. “It should be a wake-up call for all Americans when our asylum system is seen as one that violates the right to ‘life, liberty and security’ of those who flee to our shores seeking protection,” Musalo said.
Justice McDonald suspended her judgement for six months to allow the Canadian Parliament time to respond, which means that today’s decision will not go into immediate effect. However, The Center for Gender & Refugee Studies (CGRS)CGRS, applauding the decision, urges the Government of Canada to suspend returns to the United States under the STCA while the Parliament considers its response.
“Justice McDonald’s decision lays bare the grave risks that asylum seekers face under the agreement, which have been compounded by the alarming spread of COVID-19 in U.S. immigration detention centers,” Professor Musalo said today. “Returns to these conditions must not continue even one day more.”