Law enforcement officers, including HSI and ICE agents, take people into custody at an immigration court in Phoenix, Arizona on May 21, 2025.Caitlin O'Hara/Reuters
The federal government is facing a legal challenge arguing that its oversight of a two-decade-old refugee treaty with the United States is “fundamentally flawed.”
The bilateral agreement is premised on both countries being safe for asylum seekers. It prevents refugee claimants passing through the U.S. from seeking protection in Canada and vice versa.
Canada is legally required to regularly review its neighbour’s human-rights record and refugee protections as part of the treaty, the Safe Third Country Agreement, or STCA. Ottawa has not publicized its findings since 2009.
In January, U.S. President Donald Trump ordered a sweeping immigration crackdown that has heightened asylum seekers’ risk of detention and deportation. Immigration rights groups have asserted that migrants and asylum seekers have been held in “secret” detention at the northern border.
In an application for judicial review, the Canadian Association of Refugee Lawyers (CARL) and the South Asian Legal Clinic of Ontario (SALCO) argue that the lack of publicly available information about Ottawa‘s refugee monitoring process shields the government from accountability − and could violate the Constitution.
“This is so crucial because what we see happening at the Canada-U.S. border is quite troubling,” said lawyer Maureen Silcoff, who is representing CARL in the legal challenge.
Advocates in Canada have long maintained that cracks in American refugee protections leave asylum seekers at risk, raising concerns about the legality of the STCA treaty. Executive orders issued by the U.S. President in January, which initiated drastic immigration changes, have heightened fears over detention conditions for asylum seekers and rapid deportation without due process.
Sujit Choudhry, who is representing SALCO in the case, said that without detailed evidence of how Ottawa determines its neighbour is safe for asylum seekers, it is impossible to know if Canada is complying with its legal obligations to refugee claimants.
An inaccurate designation – one that results in refugee claimants at the Canadian border being returned to the U.S. and then deported to a country where they would face torture – would violate the Canadian Constitution, he added.
“In this country, we have a cabinet, not a king. The cabinet is a statutory decision-maker that is bound by the law,” said Mr. Choudhry, who has previously challenged the federal government in court over its use of the Emergencies Act against the 2022 convoy protests.
In response to questions from The Globe and Mail, a spokesperson for Immigration, Refugees and Citizenship Canada said the ministry regularly reviews developments south of the border. The U.S. continues to meet the legal criteria of a safe country, the spokesperson said. The ministry did not say when its reviews occurred or provide any further details about its findings.
The federal government is seeking to strike down the legal challenge of its monitoring process, arguing that neither group should be able to bring the case forward because neither is directly affected by the refugee treaty. The courts must rule on this motion before the legal challenge can be granted leave to proceed.
Ms. Silcoff said the two legal organizations are acting as public-interest litigants because the case is not about individuals being refused access to the Canadian asylum system but about Canada‘s legally mandated oversight of its bilateral refugee treaty. Asylum seekers who are detained in the U.S. and possibly deported would have no realistic prospect of mounting this type of legal challenge, she added.
“If we win the case, the outcome will be that the government has to conduct lawful reviews. It’s not that an individual [asylum] case would be overturned,” she said.
In submissions responding to the legal challenge, the federal government argued that its monitoring framework cannot be subject to review in court because it does not impact anyone’s legal rights.
Mr. Choudhry said that would set a “dangerous” precedent of putting government decisions beyond the scope of judicial scrutiny.
Redacted copies of two STCA reviews conducted by the federal Immigration Ministry in 2016 and 2017 were filed in a separate case challenging the constitutionality of the refugee treaty, court records obtained by The Globe show. In those proceedings, the government also acknowledged the existence of a 2018 review but did not produce a copy.
Ms. Silcoff said the redacted information produced in court failed to provide sufficient clarity on how the government justifies its designation of the U.S. as a safe country for asylum seekers.
The Immigration Ministry is also required to report its findings to cabinet “when circumstances warrant.” This has happened once in the past decade, government records show, in 2022 – shortly before the Safe Third Country Agreement expanded to cover the entire land border between the U.S. and Canada.
The contents of that report were not publicized by the government, amounting to a “black hole” in information, Mr. Choudhry said.
A monitoring regime that does not ensure cabinet has the necessary information to meet its legal obligations is “fundamentally flawed and therefore unreasonable,” court submissions by the two legal organizations say.
The legal challenge was filed last January, but the government was slow to produce a response, which delayed proceedings, Ms. Silcoff said. The parties are awaiting a court date to deal with the outstanding motions.
Mr. Choudhry said the federal government must balance the need for cabinet confidentiality with its obligation to show that its reviews of developments south of the border are “rigorous, careful and empirically grounded.”
“Otherwise, it all happens behind closed doors,” Ms. Silcoff added. “There’s no accountability.”