Canada court rules 'Safe Third Country' pact with U.S. invalid, cites detention risk

OTTAWA/TORONTO (Reuters) - A Canadian court on Wednesday ruled invalid a bilateral pact that compels asylum seekers trying to enter Canada via the American border to first seek sanctuary in the United States, saying U.S. immigration detention violates their human rights.

FILE PHOTO: The Canada Border Inspection Station is pictured from the U.S. side of the boundary in Blaine, Washington, U.S. March 23, 2020. REUTERS/Jason Redmond/File Photo

Under the Safe Third Country Agreement (STCA), asylum seekers who arrive at a formal Canada-U.S. border crossing going in either direction are turned back and told to apply for asylum in the first country they arrived in.

Lawyers for refugees who had been turned away at the Canadian border challenged the pact, saying the United States does not qualify as a “safe” country under President Donald Trump.

Federal Court Judge Ann Marie McDonald ruled that the agreement was in violation of a section of Canada’s Charter of Rights that says laws or state actions that interfere with life, liberty and security must conform to the principles of fundamental justice.

McDonald suspended her decision for six months to give Parliament a chance to respond. The agreement remains in place during that time.

Experts have said suspending the agreement would have huge implications for the Canada-U.S. relationship.

“We are aware of the Federal Court’s decision and are currently reviewing it,” said Mary-Liz Power, a spokeswoman for Public Safety Minister Bill Blair, who oversees Canada’s border agency. “The Safe Third Country Agreement remains in effect.”

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The ruling can be appealed to the Federal Court of Appeal and the Supreme Court if necessary. The U.S. Departments of Homeland Security and State did not immediately respond to requests for comment.

Nedira Jemal Mustefa, among the refugees turned back and on whose behalf a challenge was launched, described her time in solitary confinement in the United States as “a terrifying, isolating and psychologically traumatic experience,” according to the court ruling.

“Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA. The evidence clearly demonstrates that those returned to the U.S. by Canadian officials are detained as a penalty,” the judge wrote in her decision.

Mustefa, an Ethiopian now in New York City, told Reuters she was relieved. “At the end of the day, we are all humans,” she said. “No one deserves to be mistreated in such a way.”

Amnesty International Canada, one of the groups that launched the legal challenge against the STCA, hailed the “landmark decision.”


More than 50,000 people have illegally crossed the Canada-U.S. border to file refugee claims over the past four years, walking over ditches and on empty roads along the world’s longest undefended border.

Canada has sought to stem the tide of asylum seekers who flowed into the country starting in 2016, after Trump promised to crack down on illegal immigration.

Canada has closed its border with the United States to non-essential travel because of the coronavirus pandemic.

In March, it said it would no longer accept irregular migrants trying to cross the border and would instead return them to U.S. authorities, who have said they will swiftly deport them back to their home countries.

The Canadian Association of Refugee Lawyers said Canada should revisit that decision, given Wednesday’s ruling, and also revoke a 2019 rule that makes individuals ineligible for Canadian asylum if they had already filed for asylum in the United States.

Reporting by David Ljunggren and Steve Scherer in Ottawa and Moira Warburton in Toronto; Editing by Jonathan Oatis and Peter Cooney