The Safe Third Country Agreement: Safe… For Now?

In Canadian Council for Refugees v Canada (Citizenship and Immigration), 2023 SCC 17, the Supreme Court of Canada (SCC) unanimously¹ confirmed that the designation of the United States as a safe third country for the purpose of refugee claims does not violate section 7 of the Charter of Rights and Freedomswhile remitting the claimants' undecided section 15 challenge to the Federal Court. The SCC also provides helpful clarification on how courts should conduct the section 7 analysis and on the proper appellate review of constitutional claims not decided at first instance.

I. Background

The United States and Canada share a bilateral treaty – the Safe Third Country Agreement (STCA). Under the STCA, refugee claimants are required to seek refugee protection in whichever of the United States or Canada they first enter after departing their country of origin. This treaty is designed to allow both countries to share the responsibility of refugee claims.