STCA to Remain in Place Pending Appeal from the Federal Government
The Federal Court of Appeal has temporarily suspended the Federal Court’s July ruling which struck down a section of the Safe Third Country Agreement (STCA) between Canada and the United States.
On October 23, the federal government argued that Canada would face an “influx of refugee claimants” without the STCA in place. The Federal Court of Appeal decided in the government’s favour and suspended the lower court’s ruling.
By suspending the Federal Court’s decision to invalidate part of the agreement, the STCA will continue to be upheld as normal, and asylum seekers arriving from the U.S will be forced to return.
“The motion is granted. The judgment of the Federal Court is stayed until final determination of the appeal,” wrote Federal Court of Appeal Justice David Stratas.
The STCA gives Canada and the U.S. shared responsibility for refugees in a way that complies with the Refugee Convention. It also deems refugees who enter Canada from the U.S ineligible to make a refugee claim in Canada, unless they have close family members in Canada and meet certain exceptions.
Why the STCA Was Previously Deemed Unconstitutional
In a decision issued on July 22, Federal Court Justice Ann McDonald found that the STCA deprives asylum seekers of their fundamental rights of liberty and security of the person, and is therefore unconstitutional.
In her decision, Justice McDonald also stated that when Canadian immigration and border officials send refugees back to the U.S, they are complicit in the mistreatment U.S. officials carry out against refugees, such as prolonged arbitrary detention and solitary confinement.
“It is my conclusion, based upon the evidence, that ineligible (refugee) claimants are returned to the U.S. by Canadian officials where they are immediately and automatically imprisoned,” said Justice McDonald.
Following the ruling, McDonald stated that the government should expect the agreement to be officially overturned in January 2021, as it would not be in the public’s best interest to immediately put an end to the STCA.
The federal government subsequently filed to appeal the decision and requested that the decision be suspended pending a decision on the appeal. Their reasoning was that overturning the STCA would cause “irreparable harm” to the rule of law and the public good, causing an “influx” of asylum seekers and making it difficult to maintain Canada’s refugee system.
What Happens Now
The Federal Court of Appeal’s ruling does not mean that the Federal Court’s decision that the STCA is unconstitutional has been overturned.
The Federal Court of Appeal’s decision simply allows the STCA to remain in place until the Court renders a decision on the appeal. The appeal is expected to be heard in February or March of 2021.
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Arghavan Gerami
Arghavan Gerami is the Founder and Senior Counsel at Gerami Law Professional Corporation ('PC'), a full-service immigration law firm in Ottawa, Ontario. Since 2011, Ms. Gerami has focused her practice on immigration and refugee litigation. Prior to that, Ms. Gerami worked at the Ministry of Attorney General and the Department of Justice and had the privilege of serving the Honourable Mr. Justice M. Evans at the Federal Court of Appeal on immigration and administrative law appeals. Ms. Gerami contributes to the Immigration Law Section of the Canadian Bar Association, the Canadian Association of Refugee Lawyers, and the United Nations High Commissioner for Refugees. Ms. Gerami has also published numerous journal articles and presented at various immigration and refugee law conferences and events across Canada.