The Safe Third Country Agreement prohibits refugees from entering Canada if they have crossed another country that protects human rights. Since 2004, the United States has been deported as a “safe” country, so that all refugees entering Canada through official checkpoints have generally been turned back. Justice Ann Marie McDonald ruled Wednesday that the agreement violates the Charter of Canada because it occurs when refugees are detained in the United States. Under the agreement, refugee claimants must apply in the first country they arrive between the United States or Canada, unless they are entitled to a waiver. For example, asylum seekers who are citizens of a country other than the United States and who arrive from the United States at the land border between Canada and the United States can only assert their rights to refugees in Canada if they fulfill an exception under the Safe Third Country Agreement. The Federal Court of Justice “could hardly be blunted by the testimony of the horrific experiences of people in the U.S. immigration prison after Canada closed the doors to them,” said Dorota Blumczynska, Chair of the Refugee Council. Julie Taub, an immigration and refugee lawyer, says the Canada Border Services Agency has lost capacity since the agreement was put in place in late 2004 and would be “overwhelmed” if the agreement was repealed.  They argued in court that Canada, by returning ineligible refugee claimants to the United States, exposes them to detention risks and other rights violations. In Canada, calls have been made to suspend or renegotiate the agreement with the United States.
On July 22, 2020, the Federal Court of Canada ruled that the safe third country agreement was invalid because it violated the rights of asylum seekers, particularly those guaranteed under Section 7 of the Canadian Charter of Rights and Freedoms on “Life, Liberty and Security.”   As with the application of STCA, refugees returning to the United States are detained and imprisoned there, which is a “predictable” consequence of Canada`s action. The decision was suspended for six months to give the Canadian Parliament time to take a stand and is being appealed to the Federal Court of Justice and possibly the Supreme Court of Canada.  The Bundesgerichtshof`s decision was suspended on 26 October 2020 pending a decision by the Federal Court of Appeal.  Detention and its consequences are “inconsistent with the spirit and purpose” of the refugee agreement and amount to a violation of the rights guaranteed by Section 7 of the Charter, she writes. The STCA is still in effect. Persons entering a land port in Canada still do not have the right to apply for refugees and are returned to the United States unless they meet one of the corresponding exceptions under the STCA. The Canadian Refugee Council strongly opposes this agreement because the United States is not a safe country for all refugees. The CCR also denounces the objective and impact of reducing the number of refugees who can seek refuge in Canada.