Potential Third-Country Agreement Exemptions

The Safe Third Country Agreement (STCA) between Canada and the United States presumes that both nations uphold fair asylum systems that respect fundamental human rights. However, there are critical exceptions to the STCA, including situations where a refugee claimant may face severe human rights violations if returned to the U.S. In such cases, Canada may allow the individual to pursue a refugee claim despite the general restrictions imposed by the agreement.

A severe human rights violation that could justify an exemption from the STCA must be evaluated under Canadian legal standards and international human rights frameworks. The relevant legal instruments include:

• Sections 7 and 12 of The Canadian Charter of Rights and Freedoms.
• Sections 96 and 97 of the Immigration and Refugee Protection Act. (IRPA)
• The non-refoulement principle.

Following this reasoning, some conditions that could lead to an exemption from the STCA, are:

• Risk of Arbitrary or Prolonged Detention
• Refoulement and Inadequate Protection from Persecution
• Systemic Discrimination Against Certain Groups
• Cruel or inhumane treatment in detention centers.

If claimants can demonstrate systemic discrimination that would prevent them from receiving a fair refugee determination process, Canada may recognize this as a severe human rights violation.

If an asylum seeker provides credible evidence that they will face such treatment in U.S. custody, returning them may violate Canada’s commitment to human rights.

In 2023, the Supreme Court of Canada upheld the Safe Third Country Agreement (STCA); however, the legal landscape remains complex due to established precedents and ongoing challenges. Notably, a 2020 ruling by the Federal Court of Canada declared the STCA unconstitutional. This ruling potentially paves the way for future legal challenges that may arise from evolving circumstances.

Understanding these legal principles is essential for refugee claimants in navigating their rights under Canadian and international law. If Canada is to uphold its humanitarian obligations, it must remain vigilant in assessing whether the U.S. offers a fair and safe environment for all asylum seekers.

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