Canadian Federal Court declares US-Canadian asylum treaty unconstitutional

The Federal Court of Canada has ruled that the Safe Third Country Agreement (the STCA) violates Section 7 of the Canadian Charter of Rights and Freedoms (the Canadian Charter), which guarantees the right to life, liberty and security.

The STCA requires refugees to request asylum in the first safe country they reach. Under the STCA, Canada could refuse entry to those refugees who came to Canada through the US. Upon rejection, refugees would be sent back to the US. The Court held that upon being sent back, such individuals would be “immediately and automatically imprisoned” in “cruel and unusual detention conditions”. The Court found that these individuals would be penalised for merely seeking asylum in Canada. While being detained, refugees would be routinely subject to inhumane conditions such as solitary confinement, and a lack of food, heating and sanitary facilities. Refugees would also be denied access to healthcare and to legal counsel. The Court held that a direct consequence of enforcing the STCA was that refugees would be returned to the US, where they would be detained in inhumane conditions. The Court concluded that this violated the right to life, liberty and security of the individual guaranteed by Article 7 of the Canadian Charter.

The case was brought by individual refugees as well as the Canadian Council for Refugees, Amnesty International, and the Canadian Council of Churches. Human rights organisations had criticised the STCA as it encouraged asylum seekers to avoid official entry points to Canada and take more dangerous routes in order to avoid being sent back to the US.

The Court suspended the declaration of invalidity for a period of six months to allow Parliament to respond. The decision may be appealed to the Federal Court of Appeal.

Click here to read the full judgment in Canadian Council for Refugees v Canada (Immigration, Refugees and Citizenship).




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