September 25, 2020
Federal Court of Appeal to Consider the Legality of Returning Refugee Claimants to the United States
On 22 July 2020, after a three-year legal challenge, the Federal Court of Canada ruled that the laws that give effect to the Canada-United States Safe Third Country Agreement (“STCA”) violate the Canadian Charter of Rights and Freedoms, and determined that they are of no force or effect. The Court suspended its ruling for six months to give the government time to respond. On 21 August 2020, the federal government announced that it would appeal the decision. The Federal Court of Appeal had previously saved the STCA in 2008, but the world has changed dramatically since then.
The STCA was signed between Canada and the United States on December 5, 2012, as part of a post-9/11 plan to enhance border security.  It requires that asylum seekers entering Canada at a land border port of entry be refused admission and returned to the United States, and vice versa, subject to certain exceptions. 
The agreement is based on an understanding that both Canada and the United States are safe countries in which to seek asylum, that is, both countries shall abide by their international obligations. For the purposes of refugee protection, one of these obligations is the principle of non-refoulement – the prohibition against returning a refugee (and refugee claimant) to the country “where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.” 
In 2017, advocacy groups, along with asylum seekers from different countries who entered Canada from the US at a land port of entry, only to be returned to the US by operation of the STCA, challenged its validity and the constitutionality at the Federal Court. Justice McDonald ruled that “the actions of Canadian authorities in enforcing the STCA result in ineligible STCA claimants being imprisoned by US authorities” and that “imprisonment and the attendant consequences” violate the rights to “to life, liberty and security of the person” guaranteed by section 7 of the Charter of Rights and Freedoms.
This is not the first time that the STCA was challenged at the courts. Soon after it took effect in 2004, various refugee rights advocates and an unnamed asylum seeker argued at the Federal Court that the United States was not a safe country for refugees, and as such, Canada was violating the IRPA, as well as sections of the Charter of Rights and Freedoms, in designating it so. The Federal Court agreed with the applicants, ruling that the United States’ “policies and practices with respect to refugee claims did not actually comply with its obligations…to not refoule refugees to persecution or torture.”  The Federal Court’s decision was overturned on appeal on administrative grounds in 2008.  On the constitutionality of the legislation, the Federal Court of Appeal (FCA) held that it was an error for the lower court to entertain the question, as it was based on a hypothetical situation: in that case, the unnamed asylum seeker had not actually presented himself at the Canada-US border to make a refugee claim before mounting a legal challenge.
Today, things are different. In the most recent case, the Federal Court heard evidence from ineligible refugee claimants who were indeed returned to the US by operation of the STCA, where they were imprisoned and held in solitary confinement. Recounting her experiences at the hands of US officials, one of the applicants described “her time in solitary confinement as ‘a terrifying, isolating and psychologically traumatic experience.’’’ The Court found:
Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons. Ms. Mustefa describes skipping meals because she was unable to access appropriate food, and losing nearly 15 pounds. Ms. Mustefa also notes that after she was released from solitary confinement, she was detained alongside people who had criminal convictions. She explains the facility as “freezing cold” and states that they were not allowed to use blankets during the day.”
Justice McDonald heard similar evidence from other applicants, as well as expert witnesses, before concluding that returning ineligible refugee claimants to the US under the STCA will provoke certain known reactions from US officials, including detaining the claimants as a penalty. Justice McDonald held: “The 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” and found that the law breached section 7 of the Charter. It is too early to predict how the government’s appeal of Justice McDonald’s decision will unfold. There are already calls for the government to withdraw the appeal. However, it
is reasonable to expect that the FCA will be asked to undertake a much more substantive analysis of the constitutionality of the STCA than it did 12 years ago.