Safe Third Country Agreement ruled unconstitutional — here’s what could happen next

Canada’s Federal Court has ruled that the contentious Safe Third Country Agreement (STCA) between Canada and the United States is unconstitutional, a move that has been welcomed by immigration and refugee law experts.

In the decision released Wednesday, Justice Ann McDonald ruled the U.S. is no longer a safe country for refugees sent back from Canada due to the risk of imprisonment.

“I have concluded that imprisonment and the attendant consequences are inconsistent with the spirit and objective of the STCA and are a violation of the rights guaranteed by section 7 of the (Charter of Rights and Freedoms),” McDonald wrote.

However, experts say what the federal government will do in response to this ruling is unclear.

Here’s a look at what could happen next.

Appeal or suspension

While the ruling states the STCA is unconstitutional, the decision will not take effect for six months.

That means for now, the law — which prohibits people from entering Canada from the U.S., and vice versa, at official border crossings from asking for asylum — remains in force.

The treaty entered into force in 2004 on the grounds that both countries are safe and so refugees should apply for asylum in the first country they arrive in.

The federal government can now use this six-month period to decide whether to appeal the decision, or suspend the STCA.

The government could also seek a stay of the effect of the ruling, which means it would be “business as usual” until the matter is finally disposed of by the Federal Court of Appeal or possibly by the Supreme Court of Canada, Sharry Aiken, an associate professor of law at Queen’s University, explained.

Ultimately, though, Aiken said she’s “not sure” if the government will move forward with an appeal.

“My hope is that there won’t be an appeal and our government will do the right thing, which would be to move quickly to suspend the safe country agreement,” she said.

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But Efrat Arbel, an associate professor of law at the University of British Columbia, told Global News she is “absolutely” concerned about the ramifications and impact the STCA could have in the next six months amid the novel coronavirus pandemic.

“Every day that the agreement is in effect is a day in which refugees are subject to harm, significant harm that threatens their life and their safety,” Arbel said.

“The Canadian government has a myriad of options open to it that will allow it to meaningfully protect refugee rights while also safeguarding public health, as well as any other precaution that will allow to protect the Canadian public and the refugees themselves from the the heightened risks posed by the pandemic,” she continued.

She said she hopes the government takes the court’s analysis into consideration in a “meaningful and thoughtful way” when determining how to proceed.

Will Canada see an influx of asylum seekers?

Aiken said if the STCA were to be suspended amid the pandemic, Canada likely won’t see “overwhelming numbers” of new asylum seekers at the border due to widespread coronavirus-related travel restrictions.

“There may be a population of folks who are already in the United States that have been trapped in limbo and are unable to pursue claims in the United States that may end up seeking to come to Canada, she said, “but that’s a limited pool, ultimately.”

But Aiken said if the STCA is suspended, Canada will see less irregular border crossings.

“If the Safe Third Country Agreement is suspended, it means that anybody in need of asylum will approach the normal border crossing — at Niagara Falls and the Peace Bridge — those places,” she said. “And they’ll be screened.”

Arbel said while there is a risk that McDonald’s judgment will be seen as “opening the flood gates” and a threat to the integrity of the border, that is “simply not true.”

“The rhetoric that has unfolded in the past is really harmful and really dangerous,” she said.

Arbel said Canada is “well positioned” to manage the flow of refugees across the Canada-U.S. border.

“And particularly mid-pandemic, (we) are well-positioned to manage them in a way that safeguards public health,” she said.

Could the U.S presidential election change things?

Aiken said the Canadian government may be tempted to wait and see if a new U.S. administration is ushered in by the November presidential election, and if things improve for asylum seekers south of the border.

But she said that is unlikely to be the case.

“In fact, there’s been longstanding, deeply entrenched problems in relation to the way the United States is treating asylum seeker events and in particular, these detention practices,“ she said.

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She said the U.S. practices relating to the detention of asylum seekers predates the current administration, and is “not a problem that’s going to be solved simply by the outcome of the U.S. election in November.”

— With files from Global News’ Brian Hill and Rachel Browne