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Beyond being illegal, it’s also just plain wrong. Canada’s experience with the devastating intergenerational harms caused by the shameful removal of Indigenous children from their families offers a window into just how immoral this policy is.

If that wasn’t enough, the Trump administration announced on June 11 that refugees facing persecution due to domestic violence or gang violence will no longer receive asylum. Again, this leaves the U.S. in breach of international refugee law. It also conflicts with Canadian interpretations of refugee law.

Putting these announcements together, here is where we stand: some people who meet the refugee definition under Canadian law, if sent back to the U.S., are likely to be detained, separated from their children and deported to face persecution.

In this context, there is now no longer any question the agreement — at least as it is applied to refugees facing domestic violence or gang related violence — is unconstitutional under Canadian law.

Safe Third Country Agreement Unlawful

Regardless of political persuasion, no one who takes Canadian constitutional law seriously can contend Canada can lawfully send a person who meets the Canadian refugee definition to a country where they will be detained, separated from their children and then deported back to the country where they face persecution.

Indeed, it may not be possible for Department of Justice lawyers to even argue in court that the agreement is constitutional without breaching professional obligations as lawyers and civil servants. And any lawyers asked to do so should take a long hard look at the experience of others who have defended the undefendable elsewhere — such as lawyers who argued that torture was a lawful response to national security concerns or lawyers who defended apartheid in South Africa.