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The Safe Third Country pact contravenes a section of Canada's Charter of Rights which specifies that the principles of fundamental justice are above any law or state action that interferes with life, liberty, and security.
Canada's Federal Court ruled on Wednesday that the bilateral pact between this country and the United States, which prohibits migrants from seeking asylum when entering the country from the U.S., is unconstitutional and violates human rights.
Judge Ann Marie McDonald said that the Safe Third Country Agreement (STCA) contravenes a section of Canada's Charter of Rights, which specifies that the principles of fundamental justice are above any law or state action that interferes with life, liberty, and security.
The bilateral understanding, also known as the Safe Third Country pact, establishes that asylum seekers who arrived at an official Canada-U.S. border crossing moving in either direction will be turned back and asked to apply for asylum in the first country they arrived in. The pact has been implemented since 2004.
"It is my conclusion, based upon the evidence, that ineligible STCA claimants are returned to the U.S. by Canadian officials where they are immediately and automatically imprisoned by U.S. authorities," the judge explains. "Liberty rights are engaged", she added.
Judge Macdonald also highlighted that the evidence demonstrates that the immediate consequence of ineligible STCA claimants is that they will be imprisoned solely for having attempted to make a refugee claim in Canada. Hence asylum seekers become more likely to be detained as the returning of migrants from Canada officials to their U.S. counterparts facilitates a process that ends up in detention.
Several lawyers and human rights organizations have denounced that under the presidency of Donald Trump, the U.S. is no longer a "safe" country, which is a premise for the agreement. As they challenged the constitutionality of the pact, evidence emerged of gang violence, detention, and deportation to countries where migrants could be damaged. Today's ruling responds to the case Canadian Council for Refugees v. Canada (Immigration, Refugees and Citizenship).
The 62-page ruling illustrated the violations with the case of Nedira Mustefa, a Muslim woman from Ethiopia who was detained in the U.S. after trying to enter Canada. Back in the U.S. was held in solitary confinement for seven days.
"Ms. Mustefa, who is Muslim, believes that she was fed pork, despite telling the guards she could not consume it for religious reasons," the document describes, noting that as a result of skipping inappropriate food, the woman lost 15 pounds.
"Canada cannot turn a blind eye to the consequences that befell Ms. Mustefa in its efforts to adhere to the STCA," McDonald wrote.
Nevertheless, the judge has suspended his decision for the next six months to allow the parliament to debate it. During that time, the pact remains active.