On Wednesday July 23, 2020, a Federal Court of Canada ruled that the Safe Third Country Agreement (Agreement) that currently exists between Canada and the United States is unconstitutional based on the possible detention of asylum seekers upon their return to the U.S.  According to the Federal Court, detention of asylum seekers in the United States would violate the rights of asylum seekers under the Charter of Rights and Freedoms.

The Safe Third Country Agreement between Canada and the United States allows Canada to return migrants seeking asylum to the United States should they attempt to enter Canada at a land port of entry.  If a migrant seeking asylum in Canada enters the country from the United States by sea, air, or land between formal ports of entry, then the Agreement does not apply.  According to Judge Ann Marie McDonald’s opinion on the matter, those migrants returned to the United States in accordance with the Agreement potentially face detention.  In the Judge’s opinion, this potential detention is violative of the migrants’ rights under the Charter of Rights and Freedoms, which guarantees life, liberty, and security of person.

Despite this ruling, the Agreement is still in place for six (6) months to provide the Canadian parliament with time to respond.  Public Safety officials in Canada are currently reviewing the Federal Court’s decision to determine if they will comply with the spirit of the ruling or appeal it to the Federal Court of Appeal.

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