During Appeal proceedings last week, government lawyers argued that the Federal Court had misinterpreted the law when rendering its ruling of unconstitutionality of the 2004 Canada-U.S. Safe Third Country Agreement (STCA). 

The appeal is in response to the July 2020 judgement by Federal Court Justice Ann Marie McDonald, in which she ruled that elements of the bilateral STCA violate the constitutional guarantee of life, liberty and security. Refugee advocates contend that the U.S. is not always a safe country for people fleeing persecution.

Justice McDonald suspended her decision for six months to give authorities time to adjust, however, a temporary suspension was granted by the Federal Court of Appeal in October 2020, and remains in effect until all appeals are exhausted. As such, the STCA continues to be upheld.

According to Immigration Canada:

"The Safe Third Country Agreement, in place since 2004, means asylum seekers must make their refugee claim in the first ‘safe’ country to which they arrive.

"In practice it means Canada can turn back potential refugee claimants who arrive at recognized land points of entry along the U.S. border, advising them to make their claims in the U.S.

"It is also the reason thousands of asylum seekers have flooded into Canada at unrecognized border points in recent years, using it as a back door into the Canadian immigration system. Around 1,000 would-be asylum seekers were crossing into Canada each month until the coronavirus pandemic struck, resulting in the closure of the border."

It is hard to predict when the Federal Court of Appeal will issue their ruling but either party has a right to seek leave to appeal, which the Supreme Court of Canada can grant or refuse. 

These are important border security and public safety issues so...stay tuned. 

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Scott Newark