Canadian Supreme Court Hears Challenge to United States-Canada Border Agreement

by Hannah Dean, Staff Writer

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Earlier this month, the Canadian Supreme Court heard a case challenging the constitutionality of the Safe Third Country Agreement (“STCA”), a 2004 pact between the United States and Canada that declared each country safe for refugees and asylum seekers given that they both meet their obligations under international refugee law. The agreement requires that asylum seekers who arrive at an official land border crossing in Canada, by way of the U.S., must be sent back to the U.S. to seek asylum there, since they arrived in the U.S. first.[1] The U.S. does the same with asylum seekers that arrived in Canada first.[2]

The plaintiffs in this case include Amnesty International, the Canadian Council for Refugees, and the Canadian Council of Churches, along with several individuals and families that have sought asylum in Canada.[3] The advocates arguing against the constitutionality of the STCA contend that it violates the right of “life, liberty and security of the person” granted by Canada’s constitution, since asylum seekers sent back to the U.S. might be held in detention while awaiting the adjudication of their asylum claim and may face removal back to the country that they fled in the first place.[4]Furthermore, they argue that sending asylum seekers back to the U.S. with the potential outcome of being sent back to their country of origin violates international refugee conventions, which generally seek to prevent an asylum seeker’s return to the country they fled due to persecution.[5]

The STCA only applies to border crossings at official points of entry. Therefore, asylum seekers who enter at unauthorized points of entry and then file an asylum claim in Canada are not then sent back to the United States.[6] This loophole, along with an increase in unofficial border crossings, has drawn significant national attention to the STCA.[7]The Canadian government has pushed for  the U.S. to extend the STCA to cover unofficial border crossings in an effort to close the loophole, but no changes have been made to the agreement in response.[8] Furthermore, advocates for asylum seekers argue that the attempt to close the loophole would only force migrants to seek more dangerous border crossings in order to avoid being apprehended and sent back to the U.S.[9]

In its arguments in support of the STCA, the Canadian government maintained that it does not violate international refugee conventions because the U.S. meets the standards required of a safe third country under international law.[10]Additionally, government lawyers cited concerns that revoking the STCA could cause a significant increase in asylee claimants arriving in Canada, thereby exacerbating existing delays for asylee claimants and further straining the country’s immigration system.[11] They added that there are also some exceptions to the STCA, such as those for unaccompanied minors and for individuals with close family members living in Canada.[12]

This case came to the Canadian Supreme Court on appeal from a prior Federal Court of Appeal (“FCA”) ruling that overturned the Federal Court’s holding that sending refugee claimants back to the U.S. via the STCA violates their right to liberty and security.[13] The STCA was challenged in the Canadian court system in 2008 on similar grounds, and in that case, Canada’s Federal Court held that the STCA violated the same section of the Canadian Constitution.[14] The Federal Court of Appeal, which is superior to the Federal Court in Canada, then overturned that ruling, and the Supreme Court declined to hear the case on appeal.[15]

At this time, it is unclear how the Canadian Supreme Court will rule in this case. If it finds the STCA unconstitutional, the entire agreement will likely need to be renegotiated with the U.S., so it complies with Canada’s constitution. Some advocates also argue that this finding would prevent the more dangerous unofficial border crossings that have become more common among migrants traveling to Canada.[16] Either way, the result of this case has significant implications for asylum seekers in both countries, as well as the relations between the countries themselves.


[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.


[8] Id.

[9] Id.


[11] Id.



[14] Id.

[15] Id.


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