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Federal Court of Appeal decision disappointing but acknowledges ineffectiveness of review process

Canadian Council for Refugees
Media release

15 April 2021

Federal Court of Appeal decision disappointing but acknowledges ineffectiveness of review process

The Canadian Council for Refugees, Amnesty International and The Canadian Council of Churches responded with disappointment to the Federal Court of Appeal’s decision overturning the lower court’s ruling that the Canada-US Safe Third Country Agreement (STCA) is unconstitutional.

Although it allowed the government’s appeal, the Court pointed to potential shortcomings in the review process for the Safe Third Country Agreement. The evidence is overwhelming that the US is unsafe for many refugees – yet Canada’s review process has not led the government to revoke its designation of the US as a safe third country. We call on the government to recognize that the US is not safe and suspend the Agreement.

As was the case in the first legal challenge of the Safe Third Country Agreement, the Federal Court of Appeal overturned the Federal Court’s finding that the Agreement was unconstitutional on the basis of how the arguments were framed. The Court suggests an alternative way the case could have been presented – by attacking the review process for the Safe Third Country Agreement. However, this approach would be impractical, given that the government asserts a right to confidentiality of the evidence about the reviews it conducts.

The organizations are particularly disappointed that the Court does not engage with the substantial evidence before it that people sent back to the US under the Safe Third Country Agreement suffer serious rights violations in detention in the US. Shockingly, the Court even suggests that because refugees are already suffering psychologically, the impact of suffering caused by detention may not need to be considered when determining whether their treatment is “cruel and unusual”.

Neither the Federal Court nor the Federal Court of Appeal addressed the evidence that the Safe Third Country Agreement has particularly negative consequences for women because the US does not properly protect people fleeing gender-based persecution.

Under the Safe Third Country Agreement, most refugee claimants who arrive at an official border post seeking protection in Canada are denied entry and turned back to the US. Because the agreement only applies at official border crossings, many refugees have been forced to cross the border in between ports of entry, sometimes in perilous conditions. Withdrawing from the Agreement would not only ensure that Canada meets its Charter and legal obligations, but would also allow people to present themselves in an orderly way at ports of entry, ending the need for irregular crossings.

Media contacts:

Lucy Scholey, Media Relations, Amnesty International Canada (English branch), 613-853-2142, lscholey@amnesty.ca

Andréa Viens, Communications Coordinator, Canadian Council for Refugees, media@ccrweb.ca

Dr. Nicole Roccas, Communications Coordinator, The Canadian Council of Churches, 416-972-9494, communications@councilofchurches.com

For more information: