A Canadian Federal Court judge ruled Wednesday that the Canada-US Safe Third Country Agreement (STCA) is unconstitutional under Canadian law, as certain provisions of the Act violate the “right to life, liberty, and security of the person” guaranteed under the Canadian Charter of Rights and Freedoms. The STCA governs Canada’s asylum relationship with the United States, and requires that non-US citizens coming from the United States and seeking refugee status in Canada cannot do so unless they fall within a narrow range of exceptional circumstances. The Agreement covers persons attempting to enter Canada from the US through designated land border and airport crossings, and has traditionally encouraged refugee applicants to claim asylum in the United States if that is their first country of arrival. The Agreement has in recent years become controversial on both sides of the border as over 58,000 refugee claimants concerned about their safety in the US under the Trump administration have attempted to circumvent it by entering Canada illegally at non-designated crossing points, sometimes at great personal cost to their health and safety.

The application was brought by four people, who are citizens of different countries and who arrived at a designated Canada land Port of Entry (POE) from the US. They wanted refugee protection but were ineligible because of STCA. One was a Muslim woman from Ethiopia who on her return to the US was put in solitary confinement for a week and lost 15 pounds after she refused to eat what she claimed was pork given her as food by US detention authorities.

Justice Ann McDonald concluded that “The evidence establishes that the conduct of Canadian officials in applying the provisions of the STCA will provoke certain, and known, reactions by U.S. officials” and that “The penalization of the simple act of making a refugee claim is not in keeping with the spirit or the intention of the STCA or the foundational Conventions upon which it was built.” As a result, implementing the STCA and returning the applicants to the United States violated their Charter rights as refugee applicants to Canada.

The STCA will remain in effect for the next 6 months under the ruling, but the current Canadian government led by Prime Minister Justin Trudeau is under ongoing domestic political pressure to revoke it as soon as possible, despite the possibility of retaliation from the US if it does so.