By Jillian Kestler-D’Amours

This article was originally published by Truthout

The lawsuit says handing asylum seekers over to the abuse-perpetrating US is a violation of Canada’s constitution.

Canada is violating its own constitution by turning asylum seekers away at the border with the United States, where they face serious threats under U.S. President Donald Trump, Canadian legal experts and rights advocates say.

Amnesty International Canada, the Canadian Council for Refugees, and the Canadian Council of Churches are in court this week to challenge a decades-old pact that allows Canadian officials to summarily send most refugees back at the U.S. border.

People rallied in Toronto and Montreal, the two largest cities in Canada, on Monday to show support for the case and call on the Canadian government to rip up the Safe Third Country Agreement (STCA).

In Montreal, dozens of protesters held posters that read, “Canada must protect, not send back” and “Humanity has no borders.”

“If Canadians don’t feel safe in the United States, we can be sure that refugees aren’t safe either,” Lauren Lallemand, co-executive director of the Canadian Council for Refugees, told the crowd.

“The asylum system in the U.S. is failing, and those who flee in search of safety deserve to be protected.”

The Agreement

The Safe Third Country Agreement, which came into force in 2004, is premised on the idea that Canada and the U.S. each offer people access to a robust refugee protection system.

In practice, it means that asylum seekers can seek protection in the first country they arrive in, but not both: someone in the U.S. cannot apply for asylum in Canada, or vice versa.

For years, the restriction applied to asylum claims made at official crossings along the border.

But if people entered Canada irregularly between ports of entry (via farmers’ fields or rural roads, for example), they could circumvent the pact — and as Trump began to crack down on immigration during his first term, tens of thousands of people made dangerous crossings into Canada to request protection.

In 2023, amid public and political pressure to crack down on immigration, Prime Minister Justin Trudeau and President Joe Biden closed the loophole, extending the Safe Third Country Agreement to the entire 5,525-mile border.

Now, only people who meet specific conditions — such as unaccompanied minors or individuals with relatives who are already in Canada — are exempt from being turned away under the Safe Third Country Agreement.

“Extremely Urgent, Harmful”

The lawsuit being heard in Federal Court in Toronto this week argues that the Safe Third Country Agreement violates equality rights under Section 15 of Canada’s constitution, known as the Canadian Charter of Rights and Freedoms.

According to the complainants, that’s because the pact disproportionately harms racialized asylum seekers, including women fleeing gender-based violence, children, and members of the LGBTQ+ community.

Julia Sande, a lawyer at Amnesty International Canada, explained that Section 15 applies to everyone who is physically in the country, including refugee claimants.

“Canada cannot deport people to face torture, harm [and] persecution in another country,” she said. “It would be a violation of their Charter rights, even if it’s another country doing the harm, because it’s Canada’s decision to send them out … [and] to put them in [harm’s way] when harm is reasonably foreseeable.”

While conditions for asylum seekers and refugees in the U.S. have been concerning for a long time, Sande said the situation has deteriorated dramatically under the administration of U.S. President Donald Trump.

She pointed to the expansion of immigration detention as one example. “Things are obviously extremely urgent and extremely harmful,” she said.

“We all act in horror at what’s unfolding in the United States. You hear Canadian citizens talking about being afraid to go there, being afraid of ICE,” she told Truthout.

“I have a hard time believing that you could find anyone here who would say, ‘Yeah I’d really like my government to hand a child over to ICE to be thrown in detention … and ultimately sent back to a country where they fled gang violence.’”

Government Defends Pact

Canada’s federal immigration ministry — Immigration, Refugees and Citizenship Canada — told Truthout in an email that it can’t comment on matters before the courts.

But it said the Safe Third Country Agreement “is designed to keep the Canada–U.S. border safe and well-managed,” adding: “It helps avoid sudden spikes in asylum claims that could overwhelm border crossings, housing, and processing systems. This means Canada can keep the border orderly while continuing to offer protection to people who need it.”

The government also says on its website that, “only countries that respect human rights and offer a high degree of protection to asylum seekers may be designated as safe third countries.”

But Yael Schacher, head of the Americas program at humanitarian group Refugees International, said the U.S. “absolutely” does not meet that threshold. 

“The U.S. does not have fair procedures for asylum seekers anymore,” she said.

“We have a situation here where people that — by Canadian standards — should be entitled to asylum, entitled to protection, are having their rights violated all the time in the United States in many, many ways.”

“Canada Should Be Thinking Twice”

Schacher told Truthout that the Trump administration is not effectively screening asylum seekers for harm they would face should they be deported from the U.S. It also has purged judges who may have been favorable to asylum cases from U.S. immigration courts, effectively transforming them into “deportation courts.”

At the same time, the U.S. government is detaining people in dire conditions as it pushes to deport them to their home countries or to third countries where they face myriad dangers, including torture and imprisonment.

She described a recent case in which a Haitian man agreed to be deported to Haiti’s capital Port-au-Prince — which has been ravaged by deadly gang-related violence — after eight months in U.S. detention because he could not get sufficient insulin to manage his diabetes.

“He gave up his right to an asylum hearing on the merits because he couldn’t take the detention conditions anymore. He was afraid he was going to die,” Schacher said.

She said there have been cases in which people handed over to U.S. immigration authorities by Canada at the border have been detained and deported without a fair assessment of their asylum claims.

“‘Turning away’ is a way too euphemistic way of describing what Canada is doing, which is giving people to the U.S. immigration authorities, who are then putting them in prison and deporting them,” Schacher said, adding that Canada needs to rethink the STCA altogether.

“The U.S. doesn’t provide asylum anymore, and Canada — like Mexico — needs to rethink how it relates to the United States as a result.”

That was echoed by Sande at Amnesty International Canada, who said that while she expects the legal challenge to the Safe Third Country Agreement to be a long process, the Canadian government “has the power to end this at any time.”

“If you survey people on the street and ask them, based on what you’ve seen unfolding in the United States, do you think the United States is safe for refugees? I think most people would say no,” Sande said.

“A government does not need a court to tell them what is abundantly obvious. They could stop sending people back to the U.S. today.”

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